26th murderer executed in U.S. in 2013
1346th murderer executed in U.S. since 1976
3rd murderer executed in Ohio in 2013
52nd murderer executed in Ohio since 1976

Since 1976

Date of Execution

State

Method

Murderer(Race/Sex/Age at Murder-Execution)

Date ofBirth

Victim(s)(Race/Sex/Age at Murder)

Date ofMurder

Method ofMurder

Relationshipto Murderer

Date ofSentence

1346

(26)

09-25-13

OH

Lethal Injection

Harry Mitts Jr.

W / M / 38 - 61

06-18-52

John A. BryantB / M / 28Dennis GlivarOFFICERW / M / 40

08-14-94

.22 Handgun

.44 handgun

None

11-21-94

Summary:
Mitts began his hours-long rampage by firing a laser-sighted round into the chest of John A. Bryant as Bryant and his girlfriend were returning home from grocery shopping. Bryant, who was black, and his girlfriend, who was white, were walking from the parking lot to their apartment when Mitts approached the couple. He raised his gun, uttered racial slurs and shot 28-year-old Bryant point blank. Mitts then walked away, randomly firing his weapon, and prepared for the imminent police response. Mitts fired eight to 10 rounds at the first patrol car to approach the complex and then fled to his first-floor apartment. Officers Glivar and Kaiser arrived soon after and located Bryant, who bled out before they arrived. The officers returned downstairs to ensure the building was safe for paramedics to enter. That is when Mitts, who clenched a .44 Magnum in one fist and a 9 mm pistol in the other, sprung open his apartment door and let loose a volley of gunfire. Glivar was shot seven times. Two other officers were shot and wounded in the bloody standoff, which finally ended when a SWAT team shot tear gas into Mitts' apartment and subdued the wounded triggerman.

Final Words:
Mitts used his last words to ask for forgiveness and encourage the victims' families to find salvation in Jesus Christ. "I'm so sorry for taking your loved ones' lives. I had no business doing what I did and I've been carrying that burden with me for 19 years. Please don't carry that hatred for me with you in your hearts."

"Mitts executed by lethal injection this morning at Lucasville, following 20 years in prison." (September 25, 2013)

LUCASVILLE, Ohio – Garfield Heights killer Harry Mitts Jr. was executed Wednesday after spending nearly two decades on death row for gunning down his neighbor and a police officer.
A lethal injection stopped Mitts' heart at 10:39 a.m.

Mitts, 61, was sentenced to death in November 1994 after a full-bore firefight at his apartment complex that left neighbor John Bryant and Garfield Heights Police Sgt. Dennis Glivar dead.

Mitts used his last words to ask for forgiveness and encourage the victims' families to find salvation in Jesus Christ.
"I'm so sorry for taking your loved ones' lives," Mitts said with tears in his eyes. "I had no business doing what I did and I've been carrying that burden with me for 19 years.
"Please don't carry that hatred for me with you in your hearts."

Mitts' lethal injection lasted nearly 35 minutes.
At 10:05 a.m., corrections officers walked a calm Mitts into the death chamber, where he was strapped to a steel bed and hooked up to lines that would deliver deadly chemicals.
After his final words, Mitts stared at the ceiling while authorities in another room delivered the injection.
Mitts closed his eyes and took increasingly labored breaths. About a minute later, he began to snore.
The snoring soon stopped and Mitts' breathing gradually slowed. His face turned blue by the time he took his last peaceful gasp.

Mitts is the last person to be put to death in Ohio using the drug pentobarbital. The state's supply of pentobarbital was expected to run out with Mitts' executions today. Department of Rehabilitation and Correction will announce by Oct. 4 how it will respond, according to spokeswoman Ricky Seyfang.

Witnesses, including retired Garfield Heights Police Lt.Tom Kaiser, who was Glivar's partner at the time and was shot twice during Mitts' storm of gunfire, joined others in watching the condemned murderer die at the Southern Ohio Correctional Facility.
Victim witnesses included Bryant's sister, Glivar's widow and mother, and Garfield Heights Police Chief Robert Sackett.
"I know its wrong, but I still have hatred for him," said Bryant's sister Johnnal after the execution.
Glivar's widow Debbie said she would never forgive Mitts.
Mitts' friend Gary Hopkins joined ministers Edward Jenkins and Lucian Piaskowiak on the inmate's side of the witness room.
All of the witnesses watched in silence as Mitts slipped away.

Mitts began his hours-long rampage on the evening of Aug. 14, 1994 by firing a laser-sighted round into Bryant's chest as Bryant and his girlfriend were returning home from grocery shopping.
Bryant, who was black, and his girlfriend, who was white, were walking from the parking lot to their apartment when Mitts approached the couple.
He raised his gun, uttered racial slurs and shot 28-year-old Bryant point blank. Against Mitts' orders, neighbors carried Bryant to a second-floor apartment and waited for help to arrive.
Mitts then walked away, randomly firing his weapon, and prepared for the imminent police response. Mitts hoped for a suicide by cop, according to Ohio Parole Board documents.
Mitts fired eight to 10 rounds at the first patrol car to approach the complex and then fled to his first-floor apartment.
Glivar and Kaiser arrived soon after and located Bryant, who bled out before they arrived. The officers returned downstairs to ensure the building was safe for paramedics to enter.

That is when Mitts, who clenched a .44 Magnum in one fist and a 9 mm pistol in the other, sprung open his apartment door and let loose a volley of gunfire.
Glivar, 44, was shot seven times. Bullets ripped through his heart, lung, liver, kidney and stomach. He collapsed near the door, dropped his shotgun and died within minutes.
Kaiser was shot in the chest and hand but managed to force Mitts to retreat by firing in the killer's direction. Kaiser then took cover upstairs and kept watch on Mitts' apartment.

"We didn't even know he lived there," Kaiser said Tuesday. "He was just waiting for us. Maybe he was looking through his peephole. He took us by surprise."
Kaiser tried to talk Mitts into surrendering. Mitts refused.
"The only way we're going to end this is if you kill me," Mitts shouted, according to clemency documents. "You have to come down. You have to do your job and you have to kill me."

Minutes later, Maple Heights Police Officer John Mackey arrived at the complex and helped Kaiser rescue tenants upstairs by guiding them down a ladder propped against a back window.
Mackey and Kaiser then took positions outside Mitts apartment while the gunman fired sporadic shots using Glivar's dropped shotgun and weapons from his home arsenal.
At one point, Mitts was able to pick out Mackey's location by the sound of the officer's voice carrying through the hallway.
Mitts fired through a wall and hit Mackey.
The bloody gun battle ended hours later when a SWAT team shot tear gas into Mitts' apartment and subdued the wounded triggerman.

Mitts was charged with the aggravated murders of Bryant and Glivar, and the attempted murders of Kaiser and Mackey.
Three months later, the man with no previous criminal record was sentenced to death.

Authorities found thousands of rounds of ammunition in Mitts' home and a bumper sticker that read: "Gun control means hitting what you aim at."
The Ohio Parole Board said Mitts' deadly confrontation is "clearly among the worst of the worst capital cases."

Mitts began to tailspin in the weeks leading to the massacre. He began stalking his ex wife and her new husband, and admitted he thought about assassinating the man.
Prosecutors argued Mitts' attack was racially motivated, but defense attorneys contended Mitts killed Bryant only to lure police.

Last week, Gov. John Kasich denied Mitts clemency, siding with the parole board's unanimous recommendation to carry out the death sentence.
Mitts told the parole board in August he found God while incarcerated at the Cuyahoga County Jail and looked forward to living "in perpetuity with Jesus Christ" after his execution.

LUCASVILLE, Ohio — A white gunman who spewed racial slurs before fatally shooting a black man and a police officer in a 1994 rampage that prosecutors called one of the worst Ohio has seen was executed today with the state’s last use of its execution drug.
Harry Mitts Jr. asked the families of his victims to forgive him, saying he had carried the burden of his crimes with him for 19 years. “I had no business doing what I did,” he said in a last statement to six witnesses representing his victims. Two clergy members and a friend were also in attendance.
Mitts Jr., 61, was pronounced dead at 10:39 a.m. by lethal injection of the powerful sedative pentobarbital at the state prison in Lucasville after years of acknowledging his crimes and repenting. The state’s supply of pentobarbital is expiring, and a new execution method will be announced later.

Mitts was convicted of aggravated murder and attempted murder in the August 1994 rampage against random neighbors and responding police officers at his apartment complex in a Cleveland suburb.
Wielding a gun with a laser sight and later other weapons, Mitts first shouted racial epithets and killed a neighbor’s black boyfriend, John Bryant, and then shot and killed white Garfield Heights police Sgt. Dennis Glivar as he responded to the scene. Mitts also shot and wounded two other police officers.

The Ohio Parole Board and Republican Gov. John Kasich had denied Mitts’ pleas for mercy.
Mitts, at his clemency hearing, had pointed to a virtually clean record before and after the day of the shootings and said he had found God in prison. After his conviction, he spoke of receiving a Bible from Glivar’s mother and sister and a letter expressing their forgiveness and urging him to seek repentance.
Mitts told the Ohio Parole Board he had drunk heavily because he was distraught over his divorce and had likely shot Bryant to draw police to his home in hopes they would shoot and kill him. He said he wasn’t a racist and didn’t remember directing racial slurs at Bryant before shooting him. He said he couldn’t say why he didn’t shoot two white neighbors he encountered ahead of Bryant.

Prosecutors argued that, with the murders, multiple shootings and additional death threats carried out that day, Mitts “exhibited complete disregard for the lives of officers and innocent bystanders at the scene.”
“That further tragedy did not result from the bedlam that Mitts created on August 14, 1994, is in many respects a miracle,” a clemency report said.

With Ohio’s supply of pentobarbital expiring, the Department of Rehabilitation and Correction has said it expects to announce its new execution method by Oct. 4. Pentobarbital is no longer available because its manufacturer has put it off limits to states for executions.

(Reuters) - Ohio used the state's last available dose of the drug pentobarbital on Wednesday to execute a man described by prosecutors as a racist, who was convicted of killing a neighbor and then a police officer responding to the shooting.
Harry Mitts Jr., 61, was pronounced dead at 10:30 a.m. ET (1430 GMT) at the Southern Ohio Correctional facility, a state corrections department official said.

Mitts, who was white, was convicted in 1994 of killing a neighbor, John Bryant, and then shooting to death Ohio police officer Dennis Glivar as he responded to the shooting. Mitts also tried to kill two other police officers.
Prosecutors argued that Mitts was a racist who allowed two white people to flee unharmed before he shot Bryant, a black man, and used racial epithets during a standoff with police.
Mitts did not contest the evidence against him at trial, instead arguing that he was too intoxicated to form the required intent to kill.

Ohio's supply of pentobarbital expires at the end of September and will no longer be legal for executions. The drug, a barbiturate used to relieve tension and relax patients before surgery, is lethal if given in high doses.
Ohio is the latest state forced to find alternate methods after pentobarbital's Danish manufacturer Lundbeck cut off supplies to customers likely to use it for executions, in accordance with Danish law and European human rights law.
Ohio has said it plans to have a new execution drug protocol in place in October. The state is next scheduled to execute inmate Ronald Phillips on November 14.

Mitts was the 26th person executed in the United States so far in 2013 and the third in Ohio, according to the Death Penalty Information Center.

COLUMBUS, Ohio (AP) — Gov. John Kasich on Wednesday rejected mercy for a condemned killer of two men, likely ensuring the death row inmate’s execution will proceed next month.
Harry Mitts Jr. is scheduled to die by injection on Sept. 25 for killing the men, including a suburban Cleveland police officer, during a 1994 outburst at an apartment. His attorney previously said no other appeals were planned.

As is his practice in death penalty cases, Kasich didn’t explain his reasoning except to note the Ohio Parole Board unanimously recommended against mercy on Aug. 27.

Mitts uttered racial slurs before shooting his first victim, John Bryant, who was black, according to court records. He fired on two police officers as they approached his apartment where he’d taken refuge, wounding one and killing the second, Garfield Heights Sgt. Dennis Glivar.
At trial, Mitts’ attorney argued that Mitts suffered an alcoholic blackout that night and didn’t know what he was doing.
But the lawyer handling Mitts’ appeals and clemency request says there was no basis for that defense.

Attorney Jeff Kelleher says Mitts’ original lawyer missed the chance to tell the full story: that Mitts was depressed and caused the disturbance in hopes of committing suicide by being shot by police.
Mitts knows what he did, takes responsibility, is remorseful and is not and never has been a racist, Kelleher says.
“He was an angry, upset person who did something totally unexpected,” Kelleher said in August. “It’s not the person he was before, it’s not the person he’s been since.” A message was left with Kelleher on Wednesday seeking comment on Kasich’s decision.
Mitts told parole board members in an early August interview that he would leave the clemency decision up to them.
“Mitts indicated that while he could easily cope with a lifetime of imprisonment, he is also prepared to go home to Jesus,” according to the Aug. 27 report by the parole board in recommending against clemency for Mitts.

In its unanimous ruling, the board said it wasn’t convinced Mitts had taken full responsibility for the crime and it rejected his claim that the shooting wasn’t racially motivated.
“Given the multiple deaths, the racial animus underlying Bryant’s death, and the law enforcement victims Mitts targeted, Mitts’s case is clearly among the worst of the worst capital cases,” the board said.
Even though the original lawyer’s alcoholic blackout tactic didn’t work, it’s unclear what other legal strategy could have produced a different result, the board added.

The state’s supply of its execution drug, pentobarbital, expires at month’s end, and Mitts will be the last person put to death with that drug in Ohio if the execution is carried out.
The Department of Rehabilitation and Correction has said it will likely announce its new execution method by Oct. 4.

VERDICT: Found Guilty as charged of Counts 1-4 to include all specifications
DATE OF SENTENCE: November 21, 1994
SENTENCE: Counts 1 and 2: DEATH; 3 years actual incarceration (firearm specifications) Counts 3 & 4: 10 – 25 years
ADMITTED TO INSTITUTION: March 3, 1995
JAIL TIME CREDIT: 0 days
TIME SERVED: 18 years, 8 months (does not include jail time credit)
AGE AT ADMISSION: 42 years old
CURRENT AGE: 61 years old
DATE OF BIRTH: June 18, 1952

FOREWORD:
Clemency proceedings in the case of Harry Mitts Jr., A305-433, were initiated by the
Ohio Parole Board pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code
and Parole Board Policy #105-PBD-01.

On August 6, 2013, Mitts was interviewed via videoconference by the Parole Board at the
Chillicothe Correctional Institution. A clemency hearing was then held on August 19,
2013 with eleven (11) members of the Parole Board participating. Arguments in support
of and in opposition to clemency were presented at that hearing.
The Parole Board considered all of the written submissions, arguments, information
disseminated by presenters at the hearing, as well as the judicial decisions, and deliberated
upon the propriety of clemency in this case. With eleven (11) members participating, the
Board voted eleven (11) to zero (0) to provide an unfavorable recommendation for
clemency to the Honorable John R. Kasich, Governor of the State of Ohio.

DETAILS OF THE INSTANT OFFENSE:

The following account of Mitts’s offense was obtained from the Ohio Supreme Court
opinion, decided March 11, 1998:
On the evening of August 14, 1994, Timothy Rhone helped his sister and
brother-in-law, Jeff Walters, move into their apartment. The apartment
was on the second floor in the same building where Mitts lived. Between
7:00 and 8:00 p.m., Rhone noticed a man, who he later learned was Mitts,
carrying a gun tucked into the small of his back. Fifteen to thirty minutes
later, Mitts, who was wearing blue target-shooting earmuffs, confronted
Rhone in the hallway. According to Rhone, Mitts pointed a “black and
huge” laser-sighted gun at Rhone’s head and “told [him] to get out or [he]
was going to fucking die.” When Rhone replied that he did not understand,
Mitts said, “I’m not joking, get out now.” Rhone backed away and asked
his mother and sister to call 9-1-1 because “a man with a gun [was]
threatening to shoot people.”

A short time later, Tracey Griffin and her boyfriend, John Bryant, saw
Mitts walking toward them wearing yellow glasses or goggles and
carrying a gun. Griffin knew Mitts because they lived in the same
apartment complex and their daughters had played together. Mitts’s gun
emitted a light, and Griffin saw a dot of red light appear on Bryant’s chest.
Mitts said, “Niggers, niggers, I’m just sick and tired of niggers.” Mitts
aimed directly at Bryant, Griffin heard a shot, and Bryant fell down.
Mitts then walked away, sporadically firing his gun, and later walked back
toward Griffin, still firing his weapon, but now in her direction. In the
meantime, Walters and Terry Rhone, Timothy’s brother, came out to help
Bryant. Mitts aimed his gun and shouted at them, “Leave him there, don’t
move.” Walters and Terry Rhone disregarded Mitts’s instruction and
carried Bryant into their second-floor apartment.

Around 8:15 p.m., Patrolman John Cermak arrived, and a bystander saw
Mitts put a new clip in his gun. Taking “a ready [firing] position,” Mitts
fired several shots at Patrolman Cermak, forcing Cermak to drive his car
up on a lawn and take cover. Lt. Kaiser and Sergeant Dennis Glivar then
arrived. After firing at Patrolman Cermak, Mitts retreated to his first-floor
apartment. Patrolman Cermak searched for Mitts, and Lt. Kaiser and Sgt.
Glivar went to the apartment building’s second floor, where they found
Griffin, Bryant, and the Rhone family. After calling paramedics, Lt.
Kaiser and Sgt. Glivar walked down to the first floor.

As Lt. Kaiser and Sgt. Glivar approached Mitts’s apartment, Mitts flung
his apartment door open and opened fire with a gun in each hand. Mitts
repeatedly shot Sgt. Glivar, forcing him to drop his shotgun, and he shot
Lt. Kaiser in the chest and right hand. Lt. Kaiser switched his pistol to his
left hand and forced Mitts to retreat by firing three or four times. Lt.
Kaiser returned to the Rhone apartment, where he kept a watch on Mitts’s
apartment, and radioed for police assistance including the area S.W.A.T.
team.

Although wounded, Lt. Kaiser attempted for twenty to thirty minutes to
talk Mitts into surrendering, but Mitts replied, “The only way we’re going
to end this is if you kill me. You have to come down, you have to do your
job and you have to kill me.” Mitts, who had overheard Lt. Kaiser’s
S.W.A.T. request over Sgt. Glivar’s abandoned police radio, additionally
told Lt. Kaiser, “Go ahead, bring the S.W.A.T. team in, I have thousands
of rounds of ammunition. I’ll kill your whole S.W.A.T. team. I’ll kill your
whole police department.”

Mitts also threatened Griffin; Mitts told Lt. Kaiser that he was “going to
come up and kill that nigger-loving bitch that’s upstairs with you.” Mitts
also told Lt. Kaiser that he had been drinking bourbon and was angry
because the Grand River Police Chief “stole [his] wife.” Eventually,
Patrolman Cermak dragged Sgt. Glivar’s body from the hallway and

Patrolman Cermak and others used a ladder and rescued Rhone’s family
and Lt. Kaiser from the upstairs apartment.
During the standoff, Mitts called his ex-wife, Janice Salerno, and her
husband, Grand River Police Chief Jonathon Salerno. Chief Salerno
thought Mitts was joking when Mitts told him that “it’s all over with now,
I shot a couple of cops and I killed a fucking nigger.” Chief Salerno, who
believed Mitts was drunk, tried to talk him into surrendering, but Mitts
refused. Mitts claimed that he had intended to kill both Salerno and his
wife, but did not because Mitts’s daughter, Melanie, lived with the
Salernos.

Around 8:40 p.m., Maple Heights Police Officer John Mackey responded
to the call for police assistance from the city of Garfield Heights. After
helping Patrolman Cermak rescue Lt. Kaiser and the Rhone family,
Officer Mackey, Sergeant Robert Sackett, and others took tactical
positions in the hallway outside Mitts’s apartment. Taking over Lt.
Kaiser’s role as a negotiator, Officer Mackey talked with Mitts for over
thirty minutes, but Mitts refused to surrender and, at various times,
continued to fire shots. Using Sgt. Glivar’s shotgun, Mitts fired twice into
a mailbox across the hall, and he also emptied ten pistol shots into that
mailbox. According to Officer Mackey, Mitts’s voice appeared calm, and
he “never showed any anger or animosity towards” the officers.
Around 9:30 p.m., Mitts discerned Officer Mackey’s position in the
upstairs apartment from the sound of his voice and fired up the stairway
and through a wall, hitting Officer Mackey’s leg with a bullet fragment.
Other police officers returned fire and rescued Officer Mackey.
Around 1:00 a.m., the S.W.A.T. team injected tear gas into Mitts’s
apartment and finally subdued Mitts around 2:00 a.m. Mitts, who had been
shot during the standoff, was taken by ambulance to a local hospital, then
transported by helicopter to a trauma center at Cleveland’s MetroHealth
Medical Center. At 3:43 p.m., a blood sample was drawn from Mitts, and
his blood-alcohol level was later determined to be .21 grams per one
hundred milliliters.

After arresting Mitts, detectives searched his apartment and found two sets
of shooting earmuffs, a yellow pair of glasses customarily used on
shooting ranges, a .44 caliber magnum revolver, a 9 mm automatic pistol,
a .22 caliber pistol, a laser gun-sight, thousands of rounds of ammunition
in boxes, and two nearly empty liquor bottles. The police later learned that
Mitts had spent the afternoon target shooting at the Stonewall Range, a
firing range. Upstairs in apartment 204, detectives found Bryant’s body.
Dr. Heather Raaf, a forensic pathologist, performed autopsies on John
Bryant and Sgt. Dennis Glivar. Bryant bled to death within thirty minutes
as a result of a single gunshot wound to his chest piercing both lungs and
tearing the aorta. Sgt. Glivar died within “a few minutes” from five
gunshots to the trunk causing perforations of his lung, heart, liver, kidney, stomach, and intestines. Sgt. Glivar also had been shot in the left shoulder
and forearm. Dr. Raaf recovered multiple bullets or fragments from Sgt.
Glivar’s body and one small-caliber bullet from Bryant’s body.
A grand jury indicted Mitts for the aggravated murders of Sgt. Dennis
Glivar (Count One) and John Bryant (Count Two) and the attempted
murders of Lt. Thomas Kaiser (Count Three) and Officer John Mackey
(Count Four). As death penalty specifications, Count One charged that
Mitts knowingly murdered a peace officer in the performance of his
duties, R.C. 2929.04(A)(6). Both aggravated murder counts contained
three separate course-of-conduct specifications relating to the other three
shooting victims. See R.C. 2929.04(A)(5). All four counts also had
firearms specifications, and Counts Three and Four added a specification
that the victims were peace officers.

At trial, Mitts did not contest the evidence proving the facts, but instead
attempted to establish that he was too intoxicated to form the required
intent to kill. After a penalty hearing, the jury recommended the death
penalty on both aggravated murder counts. The trial court sentenced Mitts
to death for the aggravated murders and to terms of imprisonment for the
attempted murders. The court of appeals affirmed the convictions and
sentences.

PRIOR RECORD

Juvenile Offenses: Mitts has no known juvenile arrest record. Due to Mitts’s age,
records from the Cuyahoga County Juvenile Court are no longer available.

Mitts was admitted to the Ohio Department of Rehabilitation and Correction on December
6, 1994. His work assignments while incarcerated at the Southern Ohio Correctional
Facility, Mansfield Correctional Institution, and Ohio State Penitentiary included Porter
and Tutor. Since his transfer to the Chillicothe Correctional Institution, Mitts’s work
assignment has been as a Porter. Mitts reported that he graduated from Garfield Heights
High School in 1970 and attended one and a half years of college studying photo
journalism.

Since his admission, Mitts has been placed in disciplinary control one time. He was found
guilty of causing or attempting to cause physical harm to another inmate and disobedience
of a direct order, which involved Mitts arguing with another inmate after they received
their dinner trays. Mitts and the other inmate were ordered to stop by a correctional
officer. Mitts ignored the order and began to fight with the other inmate. Mitts received
eight days of disciplinary control for the infractions. He has also received one conduct
report that did not result in disciplinary control, which involved possession of contraband
that included one bottle of paint and two can openers. Mitts received a warning and the
contraband was destroyed.

APPLICANT’S STATEMENT:

On August 6, 2013, members of the Ohio Parole Board conducted an interview with Mitts
via videoconference from the Chillicothe Correctional Institution.
The following individuals observed the interview via videoconference, but did not
participate: Steve Maher from the Office of the Ohio Attorney General; Samuel Porter
from the office of Governor John Kasich; Jeff Kelleher, Mitt’s attorney; Robert Dixon,
Mitt’s attorney; T. Allan Regas, Assistant Cuyahoga County Prosecutor; Katherine
Mullin, Assistant Cuyahoga County Prosecutor; Alan Rossman, Assistant Federal Public
Defender; Lori Riga, Assistant Federal Public Defender; David Cerutti, Parole Board
Parole Officer; and Jerrold Montgomery, Parole Board Parole Officer.

Ohio Parole Board Chair Cynthia Mausser opened the interview by introducing herself to
Mitts. She noted that there were several individuals observing the interview, who were
not participating. Chair Mausser identified those individuals. Chair Mausser explained
the purpose of the interview to Mitts and noted that his clemency hearing is scheduled for
August 19, 2013. Chair Mausser introduced Mitts to the members of the Board who were
present for the interview.

Chair Mausser asked Mitts what he would like the Board to consider in determining
whether to make a favorable or unfavorable recommendation regarding clemency in his
case. Mitts told the Board that there was information that he wanted to share about the
two victims in his case whom he killed, John Bryant and Sergeant Dennis Glivar.
According to Mitts, the information he would share with the Board was not information
that the Board would glean from the records of the case.

Mitts noted that he met Bryant several weeks before he killed him. Bryant’s girlfriend,
Tracey Griffin, introduced Mitts to Bryant. According to Mitts, after being introduced, he
and Bryant spoke for several minutes. Mitts stated that there was no animosity between
Bryant and himself. Mitts related how he shot Bryant several weeks later for no apparent
reason. Mitts related that, at the time, he was distraught over his divorce and that he
wanted the police to shoot him. Mitts believes that in all likelihood he shot Bryant in an
attempt to draw police to his home. According to Mitts, several weeks prior, he had
considered shooting himself but could not bring himself to do it for fear of how his suicide
might affect his daughter, Melanie.

According to Mitts, he did not intend to shoot and kill Glivar. Mitts described how he
himself was shot multiple times during the exchange of gunfire with the police. After
being shot, Mitts no longer wanted to die. He continued to exchange gunfire with the
police in what was, essentially, a fight for survival, Mitts related. At one point, Mitts fired
around a blind corner in an attempt to force the police to back off. Unbeknownst to Mitts,
standing just feet away from the barrel of his gun was Glivar, who was shot multiple times
and killed. Mitts insisted that it was not his intention to kill Glivar.
Mitts noted that, during the standoff with police, he allowed the officers to recover
Glivar’s body. Mitts described how, when he shot Glivar, Glivar was attempting to
evacuate Mitts’s neighbor and her young son from the apartment building, using his own
body as a shield. That makes Glivar a hero in Mitts’s estimation.
Mitts stated that he was drinking heavily on the evening of the crime and that alcohol
clouded his judgment. At the same time, Mitts insisted that his intoxicated state does not
excuse his actions.

Mitts stated that he should have died on the night of the crime. Mitts described how,
following a short stay in the hospital, he was transferred to the Cuyahoga County Jail
where he found God. Since then, Mitts has tried to spread God’s word to others.
After he was sentenced and committed to prison, Mitts received a Bible from Glivar’s
mother and sister. He described that Bible as a living testament to forgiveness. Mitts later
received a letter from Glivar’s sister, which he read for the Board. In her letter, Glivar’s
sister described how her brother’s death impacted her family. Glivar’s sister told Mitts
that she and her mother forgive him, and she encouraged Mitts to seek forgiveness from
Jesus and to embrace God. Mitts stated that he is very remorseful for killing Bryant and
Glivar.

After Mitts concluded his statement, Chair Mausser asked him whether he would like to
receive clemency in any form. Mitts responded that he will be leaving that to the Board’s
discretion. Mitts told the Board that, regardless of whether he is executed or not, he will
one day live in perpetuity with Jesus Christ. The only question to be answered in the
clemency determination, Mitts stated, is whether he was going to be required to spend the
rest of his natural life in prison. Mitts indicated that while he could easily cope with a
lifetime of imprisonment, he is also prepared to go home to Jesus.
Chair Mausser then permitted the Board members to direct questions to Mitts. Mitts was
asked whether he directed racial epithets toward Bryant immediately before shooting him.
Mitts responded that he does not believe that he directed any racial slurs at Bryant.
However, Mitts acknowledged that witnesses, including Bryant’s girlfriend, Tracey
Griffin, heard him make racially derogatory comments immediately before killing Bryant.
Mitts had no explanation as to why he did not shoot Griffin or Timothy Rhone, two white
individuals who he encountered on the night of the crime. Mitts insisted that he was not
then, and is not now, a racist.

Mitts stated that he believes that he received a fair trial. When asked whether a plea
agreement was ever offered to him, Mitts indicated that he was never offered any deal
from the prosecutor. Mitts suggested that because he was indicted during an election year,
no plea agreement was ever going to be offered to him.
Mitts indicated that no planning went into his killings of Bryant and Glivar. Mitts insisted
that had he put any forethought into his actions he would not have used handguns, but
would have used a rifle with a scope. As further evidence that he did not premeditate the
murders, Mitts pointed to the fact that most of the ammunition that he had accumulated in
his apartment was small caliber 0.22. Mitts stated that the thousands of rounds of
ammunition that he had in his home was intended for use at the shooting range and was
not an inordinate amount. Lastly, Mitts asked, rhetorically, why he would voluntarily
surrender Glivar’s shotgun to the police if his intent on the night of the crime was to
engage in mass killing.

Mitts spoke further about his ex-wife, Janice, and her husband Jonathon Salerno, whom
she married after divorcing Mitts. Mitts recounted how he had once fantasized about
killing both Janice and Salerno. Mitts indicated that he initially felt a great deal of
animosity toward Salerno. According to Mitts, Salerno, a local police chief, routinely
abused his authority, harassing Mitts and others. Mitts related that he once followed
Salerno with a gun and had him “scoped out.” Mitts stated that it was for the sake of his
daughter that he did not kill Salerno. According to Mitts, his daughter had grown close to
Salerno so he spared Salerno’s life. Mitts stated that, over time, he became friends with
Salerno.

Mitts stated that he has had no contact with his daughter for the vast majority of his
incarceration. After three years of letter writing following his commitment to prison,
communication between Mitts and his daughter stopped. Mitts noted that he has an aunt
who keeps in contact with him. His brothers and sister write him occasionally and
sometimes send him money.
Mitts indicated that he was not surprised when he was sentenced to death in 1994. The
death sentence caused him no great consternation. He has appealed his death sentence
through the years because it was recommended by his attorneys and was the normal
course.

When asked why he ultimately decided to participate in the clemency interview after
vacillating on that decision, Mitts responded that he originally refused to participate in
order to convey to the Board that he did not want clemency. He was later moved by the
Lord to participate. When asked whether he wants to live, Mitts responded that there will
be eternal life for him with Jesus.
Chair Mausser thanked Mitts for participating in the interview, explained to him the
remaining phases of the death penalty clemency process, and concluded the interview.

ARGUMENTS IN SUPPORT OF CLEMENCY:

A clemency application was submitted to the Parole Board. On August 19, 2013, a
hearing was conducted to further consider its merits. Mitts’s attorney, Jeff Kelleher,
represented Mitts at the clemency hearing and presented arguments in support of
clemency. Kelleher’s co-counsel, Robert Dixon, was present but did not make any
statements.

Kelleher noted that he has represented Mitts since Mitts undertook his federal habeas
corpus appeals. Kelleher conceded that there was no contesting Mitts’s guilt on any
element of the offenses for which he was convicted, and the evidence against Mitts was
strong. Kelleher stated that he had no intention of twisting the facts or playing with the
truth during his presentation.
Kelleher advanced three arguments in support of clemency, the first two of which are
related. First, Kelleher challenged the representation provided Mitts at trial by his
attorney at that time, Thomas Shaughnessy. Second, Kelleher argued that Mitts is not, as
Kelleher believes the State is suggesting, a racist cop killer who is remorseless and
without redeeming qualities. Third, Kelleher argued that clemency is warranted because
the State is on the cusp of changing its death penalty protocol.
According to Kelleher, Mitts’s situation is much more complicated than it might appear on
its face. Kelleher spoke of the remorse that Mitts feels today. He described the Bible that
was given to Mitts by Glivar’s mother and sister, which has never left Mitts’s hands.
Mitts opens the Bible every day. He had followed the admonition of Glivar’s family that
he embrace God. By doing so, Mitts is honoring the wishes of his victims, Kelleher
urged. In that way, Mitts and his victims are forever connected. That, according to
Kelleher, is how Mitts manifests his remorse. Mitts is not an outwardly emotional person,
Kelleher stated. Kelleher urged the Board not to conclude from Mitts’s stiff, unemotional,
and militaristic demeanor that he is remorseless.

Kelleher related that when he first met Mitts, Mitts stated to him that he was the only
guilty man on death row. Mitts always acknowledged that he deserved whatever
punishment was ultimately imposed upon him.
Kelleher insisted that Mitts was not racist, despite the racist epithets he repeatedly uttered
on the night of the crime. Kelleher urged the Board to consider the allegation that Mitts is
racist in the context of what the evidence in the case does and does not demonstrate.
Kelleher noted, for instance, that a search of Mitts’s apartment following his arrest
uncovered no racist literature. Though Mitts’s ex-wife once indicated that Mitts had at
one time contemplated joining the Ku Klux Klan, her allegation has never been
substantiated, Kelleher insisted. Kelleher noted that for 19 years Mitts has lived
peacefully on death row with other ethnic groups, including African Americans. In the
years preceding his crime, there was never any indication that Mitts was racist. In
evaluating whether Mitts is or is not a racist, Kelleher urged the Board to look at the
person that Mitts was both before and after the crime.

Kelleher argued that Mitts’s history of racial tolerance and other positive qualities were
never developed at trial. According to Kelleher, there was a rush to judgment in Mitts’s
case. The trial, verdict, and sentencing all occurred within 90 days, Kelleher noted.
Shaughnessy could not have thoroughly researched Mitts’s background and provided an
adequate defense in such a short period of time, Kelleher insisted. Shaughnessy therefore
effectively abandoned Mitts during the trial process. According to Kelleher, Mitts’s trial
was more about Shaughnessy’s personal aggrandizement than competently defending
Mitts.

Kelleher urged the Board to view Mitts’s trial in the context of how Cuyahoga County
was handling capital cases in the 1990s. According to Kelleher, those cases were
repeatedly referred to the same defense attorneys, who were more concerned with media
exposure and posturing than defending their clients.
Kelleher specifically took issue with the theory advanced at trial by Shaughnessy that
Mitts had experienced amnesia caused by alcohol blackout. Essentially, Shaughnessy’s
sole defense theory was that Mitts was too intoxicated on the night of the crime to form
the requisite criminal intent to kill. That defense, Kelleher urged, was created out of
whole cloth. Shaughnessy’s own trial expert refuted his blackout theory. Kelleher argued
that the blackout defense was foisted upon Mitts, who never denied that he was aware of
what he was doing on the night of the crime and had control over his faculties throughout.
Shaughnessy thus painted an incomplete picture of Mitts to the jury, Kelleher argued.
Mitts was presented to the jury as a calculating, cold-blooded killer who was attempting to
hide behind a weak intoxication defense. Kelleher argued that Mitts’s trial attorney
should have instead painted for the jury a more complete picture of who Mitts was when
he committed his crimes. Shaughnessy should have dissected Mitts’s life for the jury at
the mitigation phase of the trial, describing Mitts’s several divorces and his struggle with
depression, which included suicidal ideation.

Nor did Shaughnessy describe for the jury how Mitts had served his country in the Coast
Guard and was gainfully employed following his discharge, Kelleher noted. Shaughnessy
never informed the jury that, despite the implication that Mitts was a racist, Mitts had in
fact worked alongside African Americans for many years without incident. As important
as all of that information was, Shaughnessy ignored it, Kelleher argued.
In short, Mitts was abandoned and betrayed by his trial counsel, Kelleher urged. The trial
was a calamity. There was no reason for Shaughnessy to adopt the blackout defense,
Kelleher insisted. While conceding that he has no way of knowing how Mitts’s trial
would have turned out had Shaughnessy handled it differently, Kelleher stated that he
knows that Mitts was denied the opportunity to present his true self during the trial and,
specifically, to refute the implication that he is a racist.
Up to the night of the crime, Mitts had lived a law-abiding life. However, in the weeks
preceding the shootings, Mitts began to unravel. His suicidal thoughts were becoming more frequent. He was self-medicating with alcohol. Mitts was also stalking his wife and
her new husband, Kelleher noted. In short, Mitts was beginning to act very bizarrely.
Mitts did not kill Bryant because Bryant was African American, Kelleher insisted. Rather,
Mitts killed Bryant to draw the police to him and to kill him. According to Kelleher, he
was “fanning the flames” by making racially provocative remarks to hasten his own death
at the hands of the police. That Mitts survived the night of the crime is nothing short of a
miracle.

Kelleher described Mitts as asymptomatic today. He indicated the Mitts does not
currently entertain any thoughts of suicide.
Kelleher described Mitts as completely honest to the point of being compulsively truthful.
As evidence of his truthfulness, Kelleher pointed to the fact that Mitts confessed to the
Board during his clemency interview that, in the period preceding the crime, he had been
stalking John Salerno and was contemplating killing him. Mitts is so compulsively
truthful, Kelleher argued, that Mitts could not support the false blackout theory that
Shaughnessy was advancing at trial. While alcohol has always been part of Mitts’s
problems, Mitts himself has never attempted to hide behind it or otherwise tried to skirt
responsibility for his crime. Kelleher argued that given his honest nature, were Mitts in
fact a racist, he would acknowledge it to the Board. Kelleher opined that Mitts is
fundamentally a good man.

Kelleher addressed the fact that Mitts possessed several firearms and accumulated
thousands of rounds of ammunition, noting that it is not clear why Mitts accumulated the
firearms and ammunition. Guns and ammunition were not a life-long obsession for Mitts.
Mitts’s interest in firearms was something that developed well into his adulthood. It was
part of the psychological changes that emanated from Mitts’s divorces and his ensuing
depression, Kelleher argued.
Kelleher noted that the Department of Rehabilitation and Correction intends to adopt a
new death penalty protocol in October 2013, which is after Mitts’s scheduled execution
date. Kelleher described this as an interesting stage in Ohio’s death penalty history, and
described the current system as defective and flawed. According to Kelleher, Billy
Slagle’s recent death row suicide is an example of those defects and flaws. Kelleher urged
the Board not to use Mitts as a “free pass” to demonstrate that the existing death penalty
protocols work, thereby quieting any questions or concerns raised by Slagle’s suicide.
In short, Kelleher argued, the existing death penalty system is broken and needs to be
retooled. Mitts should not be the last of the line of inmates executed as part of that broken
system. Mitts should be a part of the death penalty reforms and not the memory of a
deficient system, Kelleher argued.

Kelleher addressed Mitts’s views on the appellate process and these clemency
proceedings. Kelleher acknowledged that, during his clemency interview, Mitts conveyed
ambivalence about clemency. According to Kelleher, Mitts has always believed that his
death sentence was just. If he downplayed the appeals process during his interview, it is because Mitts has always accepted responsibility for his crime, Kelleher argued. Mitts’s
attitude toward the appeals process is a manifestation of his own remorse. According to
Kelleher, after his appeals were exhausted and clemency proceedings commenced, Mitts
wrestled with the decision as to whether to participate in the Parole Board clemency
interview, eventually deciding to participate because there were things that he wanted the
Board to know, including his view that Bryant and Glivar were heroes. Mitts wanted to
use the clemency process as an opportunity to continue his atonement.
Kelleher explained that Mitts authorized him to speak on his behalf and to explain to the
Board who Mitts is as a person. Kelleher believes that Mitts, today, does want clemency,
as he speaks of how God might have a plan for him were his sentence to be commuted to
life. Kelleher stressed that he was present at the clemency hearing because Mitts wanted
him to be there.

ARGUMENTS IN OPPOSITION TO CLEMENCY:

Assistant Ohio Attorney General Steve Maher, Assistant Cuyahoga County Prosecutor T.
Allan Regas, and Assistant Cuyahoga County Prosecutor Katherine Mullin presented
arguments in opposition to clemency.
Mullin showed the Board several PowerPoint slides. The slides included photographs of
Bryant and Glivar taken when they were both still alive; various photographs of the crime
scene; and photographs of the firearms and ammunition recovered from Mitts’s apartment
following his capture. In addition, one of the slides in Mullin’s PowerPoint contained a
photograph of a bumper sticker found in Mitts’s apartment that read: “Gun control means
hitting what you aim at.”

Mullin noted that, despite the overwhelming police presence at the clemency hearing, the
hearing is not solely about Sergeant Glivar, but also John Bryant, who was Mitts’s first
fatality. Bryant was killed for no other reason than that he was African American and in
front of Mitts, who is a racist, Mullin argued. Mullin noted that Bryant was not the first
person that Mitts encountered after he armed himself on the night of the crime. That
person was Timothy Rhone, a white man. Instead of killing Rhone, Mitts directed him to
leave the building. Nor did Mitts kill Bryant’s girlfriend, Tracey Griffin, another white
individual at the scene. Mitts continued to use racial epithets throughout the police
standoff, Mullin pointed out.
Mullin stated that, like Kelleher, she agrees that the Board should examine the context and
evidence in the case when evaluating whether Bryant’s death was racially motivated. In
her view, that context and evidence leads to no other conclusion than that Mitts was a
racist who targeted Bryant because of the color of his skin. Mitts was able to hide his
racism until the night of the crime, when he could contain it no longer, Mullin argued.
Mullin stated that Mitts should not be executed because he is racist. Rather, he should be
executed because he took the lives of two individuals. The State has no need to fabricate racism or any other reason to support Mitts’s execution, Mullin insisted. Mitts’s crimes
alone are sufficient reason to carry out his death sentence.
Regas added that, while Mitts’s racism is not a legitimate basis upon which to execute
him, it is relevant because it puts his actions into context. Mitts was not, as Kelleher
suggests, using race to “fan the flames” on the night of the crime. On the contrary, Regas
argued, the crime itself was racially motivated. Were Mitts merely using race to fan the
flames, Mitts would have related that fact to the Board during his clemency interview, but
he did not.

Regas refuted the notion that Mitts’s relationships with African Americans were entirely
copasetic in the period preceding the shooting. Regas noted that Mitts had previously
reported to Salerno that Mitts was having difficulties at work that Mitts believed were
race-related.
Regas noted that, were Mitts’s motivation simply to commit suicide by cop, he could have
accomplished that purpose by walking up to a police officer with an unloaded firearm.
There was no need to take anyone’s life other than his own. Mitts’s actions, along with
the guns and ammunition found in his apartment, clearly demonstrate that Mitts was out to
kill people on the night of August 14, 1994, Regas argued.
Mullin then described the responding officers’ heroics on the night of the crime. She
described how Mitts immediately fired upon one of the first officers responding to the
scene, Jon Cermack. Not far behind Cermack were Kaiser and Glivar, who were also
among the first on the scene.

Mullin related how Mitts opened his apartment door and confronted Kaiser and Glivar in a
shooter’s position wearing ear and eye protection, which suggests that he was spoiling for
a firefight. Mullin related how Mitts killed Glivar and shot Kaiser twice. She challenged
Mitts’s contention that he did not intend to shoot and kill Glivar. The idea that Glivar was
simply in the wrong place is meritless. Mullin stated that it was Mitts’s philosophy to hit
what he aimed at, referring to the bumper sticker that was found in Mitts’s apartment.
Despite being seriously wounded, Kaiser continued to attempt to negotiate with Mitts,
Mullin related. Meanwhile, Mitts shot another police officer, John Mackey. After fatally
wounding Glivar, Mitts picked up Glivar’s shotgun and began firing into the walls of the
surrounding apartments. Every one of those gunshots could have produced another
victim, Mullin pointed out, as Mitts was on a terroristic rampage. Mullin described how
deeply Mitts’s actions affected everyone at the crime scene, including the emergency
medical personnel who treated the several victims.
Mullin challenged Kelleher’s suggestion that Mitts was an otherwise law-abiding
individual who snapped. Mitts acted with prior calculation and design, Mullin insisted.
As evidence of Mitts’s propensity for criminal calculation, Mullin pointed to Mitts’s own
admission during his clemency interview that he had been stalking Salerno. In short, Mitts had the propensity to kill and could have very easily killed before, Mullin argued.
The events of August 14, 1994 were a virtual inevitability, she contended.
Maher then added that Mitts’s premeditation is evidenced by the manner in which he
killed Bryant. Maher noted that the weapon that he used to kill Bryant had a red laser dot
sight, a device used to ensure precise aim. Mitts used that sighting device to shoot Bryant
through his aorta, which was as fatal a shot as Mitts could have delivered to Bryant. Mitts
did not exhibit disorganized behavior during the shooting, Maher added.
Mullin challenged the notion that Mitts’s trial counsel was ineffective. Although
Shaughnessy’s blackout theory ultimately failed, it was not unreasonable. Mullin noted
that Kelleher offers no viable alternative theory that trial counsel could have advanced.
The jury was aware that Mitts had been depressed in the past. That, and any remaining
mitigation, was simply not sufficient to outweigh the aggravating factors, Mullin
suggested. In any case, Mitts’s ineffective assistance of counsel claims have been
thoroughly litigated.

Mullin argued that the 90-day timeframe in which Mitts’s trial was conducted was not
unreasonable. The trial was conducted within the parameters of Mitts’s constitutional
right to speedy trial, she pointed out.
According to Mullin, Mitts was not remorseful during his clemency interview. She
acknowledged that Mitts stated that he was remorseful; however, in her opinion, he did
not actually demonstrate it. That Mitts spoke of remorse means little, Mullin argued. In
her experience, when someone speaks of how remorseful they are, that is usually the first
indication that the person is in fact remorseless. Mullin speculated that Mitts’s
unwillingness or inability to demonstrate remorse may be related to the fact that he is not
wholeheartedly seeking clemency. Regas observed that Mitts himself has never directly
requested that his life be spared. Only upon prodding from the Board during the clemency
hearing has Mitts’s attorney requested, without equivocation, that Mitts be granted
clemency, Regas stated.
Regas noted that he was present for Mitts’s clemency interview and was struck by Mitts’s
lack of emotion during the interview. Regas observed that the only moments of the
interview during which Mitts exhibited any emotion was when describing his tactical
actions and decisions on the night of the crime, which Mitts apparently took great pleasure
in detailing for the Board.
Regas disagreed with Kelleher’s contention that Mitts is compulsively truthful, and argued
that Mitts does not always tell the truth. Regas pointed out that when the Board asked
Mitts about the racial epithets that he was heard uttering on the night of the crime, Mitts
indicated that he did not recall making the statements. His evasive answers on that issue
demonstrate that Mitts is not always truthful. Regas insisted that Mitts’s actions and his
behavior during the clemency interview demonstrate that he is not the good man that
Kelleher describes him to be.

Maher then added that Kelleher’s argument that Mitts has never shirked responsibility for
his crime is contradicted by both the court records and the clemency interview. In
addition to attempting to shirk responsibility by disavowing any racial component to the
crime, Mitts also attempted to shirk responsibility during his trial years ago, Maher
argued.
Maher noted that Mitts raised the issue of ineffective assistance of counsel in federal
court, arguing that his trial counsel compelled him to go along with a blackout defense
that he did not support. Maher observed that Mitts only raised that claim after he received
the death sentence, but up to that point, Mitts appeared quite content to pursue the
blackout defense. Maher noted that Mitts had even provided an unsworn statement to his
jury stating that he had no memory of what occurred on the night of the crime until police
related to him what transpired. Thus, Maher argued, at the time of trial, Mitts attempted to
shirk responsibility by facilitating a blackout defense that he now claims had no basis in
fact.

Maher disagreed with Kelleher’s contention that Mitts’s trial counsel abandoned Mitts by
failing to address the racial component. Maher noted that racial animus was not an
element of any of the crimes with which Mitts was charged. Therefore, the prosecution
was not required to prove that Mitts acted with racial motivation. The upshot of that,
Maher argued, was that, though Mitts’s racial motivation lurked in the background of his
trial, Mitts’s apparent racial animus was not an issue that Shaughnessy could directly
confront at trial. Therefore, Shaughnessy addressed the issue indirectly. For instance,
when cross-examining an employee from the shooting range that Mitts frequented,
Shaughnessy asked the witness whether he recalled Mitts bringing an African-American
friend with him to the shooting range. Similarly, when cross-examining Bryant’s
girlfriend, Tracey Griffin, Shaughnessy questioned her about her ex-husband, who was
African American; how Mitts was aware that Griffin’s ex-husband was African American;
and how Mitts remained friends with Griffin notwithstanding her past relationship with an
African-American man.

According to Maher, the allegation that Shaughnessy ignored the issue of race at trial is
thus directly contradicted by the record. Shaughnessy addressed the issue in the only way
that he could given that racial animus was not an element of the charged crimes, Maher
argued.
Mullin argued that the upcoming change in the lethal injection protocol should have no
bearing on Mitts’s execution. According to Mullin, the fact that Mitts will be the last
person to die under the existing protocol is not a legitimate basis for clemency. The
current protocol is constitutional, she noted.
Maher added that Mitts himself has never been a party to the state’s lethal injection
litigation, which has been pending in federal court for several years. Having never joined
the lethal injection litigation, Mitts is not now in a position to obtain any legal relief from
it.
Mullin then concluded the State’s presentation by noting that the office of the Cuyahoga
County Prosecuting Attorney recently conducted an exhaustive review of Mitts’s case and
determined that the death penalty remains an appropriate penalty in his case. She asked
that the Board make an unfavorable recommendation regarding clemency.

VICTIMS’ REPRESENTATIVES:

Bryant’s sister, Johnnal Bryant, read from a letter directed to Mitts. In it, she noted that
her family can now finally find closure as Mitts’s execution date approaches. She
recognized that Mitts’s execution will not bring her brother back. However, it will give
her a sense of satisfaction that justice is finally done. She noted that her brother lived only
30 minutes after he was shot while Mitts has lived for 19 years. She noted that before
shooting her brother, Mitts had contemplated killing his ex-wife and her new husband but
chose not to because of the impact it would have upon his daughter. She asked,
rhetorically, whether Mitts ever realized that Bryant too had a family who loved him.
Who made Mitts God that he could take a life, she asked. Mitts may think he is going to
heaven, but he is not, she stated.

Donald Dean, a minister and friend of the Bryant family, stated that Mitts acted purposely
when he killed Bryant. Mitts chose to kill Bryant because Mitts was racist, Dean opined.
It was a clear-cut case of murder. Mitts was a cold-blooded killer who hated African
Americans. While he and the Bryant family have forgiven Mitts, they have not forgotten
what he has done. Dean described how Bryant had turned his life around in the years
preceding his death. Bryant had made several positive changes in his life, including
embracing God. Dean indicated that it would, in his opinion, be an injustice for Mitts not
to suffer the consequences for what he has done.

Tom Kaiser read from a prepared statement. Kaiser cannot imagine the pain that the
Glivar and Bryant families have experienced as they wait for justice to be carried out.
Kaiser noted that he and Glivar were good friends, and described how, ten minutes before
responding to Mitts’s apartment, they were eating together and complaining about the
ongoing baseball strike. Just ten minutes later, they were cowardly ambushed by Mitts.
Kaiser insisted that Mitts could not have shot him twice and Glivar five times were Mitts
in a blackout state, as Mitts’s trial counsel had suggested. Kaiser continued his police
career after being shot, but was away from work for a year. Many of the officers present
at the scene, including himself, were psychologically scarred for life, Kaiser reported.
Kaiser described Mitts as a racist assassin and a cop killer. Kaiser stated that it is time
that everyone affected by Mitts’s crime receive the justice they so deeply deserve.
Glivar’s wife, Debbie Glivar, noted that she had been married to her husband for eleven
years when Mitts took his life. She spoke of the last moments that she spent with her
husband, and related how it is impossible for her to articulate how her life has been
affected by her husband’s death because her life is filled with what-ifs. She dwells on
thoughts of what she has missed out upon in her life. She loved being married to her
husband and she still misses her life with him. Her life today is incomplete and in limbo; she moves constantly because she does not know where she is supposed to be. Her
husband was everything to her.

Bob Sackett, the current Chief of the Garfield Heights Police Department, stated that he
was a patrol officer in 1994 when the crime occurred. The Department had never before
endured an event like Mitts’s crime, which also deeply affected the community. Sackett
described Glivar’s funeral procession and how children stood outside their schools along
the route paying their respects to the passing officers. Sackett described the fear in the
eyes of the various officers’ wives in attendance at the funeral that their husbands might
someday meet the same fate as Glivar. Mitts does not, today, accept responsibility for the
crime nor adequately express remorse, Sackett stated. He noted, for instance, that it is a
slap in the Bryant family’s face for Mitts to deny today that he killed Bryant because
Bryant was African American. Sackett stated that Mitts lay in wait for Kaiser and Glivar
before shooting them both. Nothing Mitts said or did on the night of the crime suggested
that Mitts did in fact want to die at the police’s hands or that he was not in control of his
own actions. Mitts murdered two men in cold blood, one because of the color of his skin
and the other because of the uniform he wore. Sackett asked that the Board make an
unfavorable clemency recommendation and that Mitts’s death sentence be carried out.
Thomas Murphy, the former Chief of the Garfield Heights Police Department, described
Glivar as a good man, husband, police officer, and friend. No one who knew Glivar
would have a bad word to say about him. Glivar was nicknamed “the shadow” because he
was seemingly ever-present, always having his fellow officers’ backs. Murphy described
Glivar as efficient and silent. Glivar and Kaiser, who were both well trained, were
ambushed by Mitts outside his apartment. Glivar and Kaiser did not stand a chance,
Murphy insisted. Murphy described how the entire community and his police department
were devastated by the crime. He also described how Kaiser left the hospital to attend
Glivar’s funeral against his doctors’ direction. Murphy stated that Mitts’s cowardly acts
left dozens of people scarred for life. He asked that Mitts be shown no mercy and that
clemency be denied.

Jonathon Salerno, a former Grand River Police Chief and the husband of Mitts’s ex-wife,
spoke of how he adopted Mitts’s daughter, Melanie, after Mitts was convicted. According
to Salerno, the Mitts he knew was a racist who hated police. Salerno described how Mitts
called him during the standoff with police and told him that he had killed a cop and
Bryant, using a racial epithet to describe Bryant. At no time during that conversation did
Mitts discuss suicide, Salerno related. Salerno indicated that his prior encounters with
Mitts were consistently negative, describing Mitts as a very aggressive person. Mitts
would tell Salerno that he had no use for cops or black people. Mitts liked to describe his
weapons to Salerno. Salerno described how Melanie once returned from a scheduled visit
with Mitts and told Salerno that Mitts had asked her if she wanted to meet his new
girlfriend, a gun. When speaking on the telephone during the standoff with police, Mitts
told Salerno that he had intended to kill Salerno too until Melanie had told him how much
she loved Salerno. Salerno does not believe that Mitts should receive clemency. Rather,
Salerno urged, he should get what he deserves—death by lethal injection.

PAROLE BOARD’S POSITION AND CONCLUSION:

The Ohio Parole Board conducted an exhaustive review of documentary submissions and
carefully considered the information presented at the clemency hearing. The Board
reached a unanimous decision to provide an unfavorable recommendation regarding
clemency for the following reasons:

• The Board is not persuaded that the unsuccessful blackout theory advanced by
Mitts’s trial attorney warrants clemency on the theory that advancing the defense
amounted to ineffective assistance of counsel. Although that defense tactic
ultimately proved unsuccessful, it remains unclear what alternative trial strategy
would have produced a different result. In any case, that and other claims of
ineffective assistance of counsel advanced by Mitts through the years, have all
been extensively litigated in, and rejected by, the reviewing courts.

• Mitts accepts responsibility for the crime, but only to a point. Mitts continues to
deny or minimize many of the most troubling aspects of his crime. For instance,
despite using racial slurs prior to shooting Bryant and during the ensuing police
standoff, Mitts denies that the crime was racially motivated. Likewise, the record
belies Mitts’s insistence that he only accidentally shot Glivar and Kaiser in an
attempt to make the officers retreat. Mitts’s claim that he was, at first, attempting
to commit suicide by cop and then, later, to survive the police standoff is also
patently lacking in credibility. As the State points out, if Mitts’s purpose was
simply to be shot and killed by the police, he could have accomplished that by
pointing an unloaded gun at officers. It also speaks volumes that Mitts did not
immediately surrender after he supposedly decided that he wanted to live. Lastly,
the Board is troubled by Mitts’s suggestion during his clemency interview that the
various weapons and the thousands of rounds of ammunition in his apartment were
reasonable in quantity and not intended for any nefarious purpose.

• The Board finds no merit in the argument advanced by Mitts’s attorney that
impending changes in the death penalty protocol somehow renders suspect Mitts’s
execution under the existing process.

• Standing in juxtaposition to the insubstantial bases for clemency advanced by
Mitts’s attorney are the aggravating characteristics of Mitts’s crime, which are
many. It is apparent that Mitts targeted his first victim, John Bryant, because
Bryant was African American. Mitts then engaged in a protracted standoff with
police, exchanging gunfire with officers and randomly discharging various
firearms. Mitts exhibited a complete disregard for the lives of officers and
innocent bystanders at the scene. In the end, in addition to killing Bryant, Mitts
killed one police officer and wounded two others. That further tragedy did not
result from the bedlam that Mitts created on August 14, 1994 is in many respects a
miracle, and is testimony to the fine work of the law enforcement officers who
responded to the scene. Given the multiple deaths, the racial animus underlying Bryant’s death, and the law enforcement victims Mitts targeted, Mitts’s case is
clearly among the worst of the worst capital cases.

• Mitts’s crime not only deeply affected the lives of its immediate victims, it also
had a profound impact upon the Garfield Heights Police Department, and the
larger community in which it occurred.

• Mitts himself has expressed ambivalence about clemency. During his clemency
interview, Mitts suggested that he has been heavily invested in neither his judicial
appeals nor this clemency process. According to Mitts, he pursued the court
appeals at his lawyers’ urging and because it was the routine course. As for
clemency, Mitts personally expresses no particular preference one way or the
other. While Mitts’s indifference is not, by itself, sufficient basis upon which to
make an unfavorable recommendation, the Board does give it some weight in its
overall determination.1

RECOMMENDATION:

The Ohio Parole Board with eleven (11) members participating, by a vote of eleven (11)
to zero (0) recommends to the Honorable John R. Kasich, Governor of the State of Ohio,
that executive clemency be denied in the case of Harry Mitts Jr., A305-433.

On the evening of August 14, 1994, Timothy Rhone helped his sister and brother-in-law, Jeff Walters, move into their apartment. The apartment was on the second floor in the same building where Harry D. Mitts lived. Between 7:00 and 8:00 p.m., Rhone noticed a man, who he later learned was Mitts, carrying a gun tucked into the small of his back. Fifteen to thirty minutes later, Mitts, who was wearing blue target-shooting earmuffs, confronted Rhone in the hallway. According to Rhone, Mitts pointed a "black and huge" laser-sighted gun at Rhone's head and "told him to get out or he was going to fucking die." When Rhone replied that he did not understand, Mitts said, "I'm not joking, get out now." Rhone backed away and asked his mother and sister to call 9-1-1 because "a man with a gun was threatening to shoot people."

A short time later, Tracey Griffin and her boyfriend, John Bryant, saw Mitts walking toward them wearing yellow glasses or goggles and carrying a gun. Griffin knew Mitts because they lived in the same apartment complex and their daughters had played together. Mitts's gun emitted a light, and Griffin saw a dot of red light appear on Bryant's chest. Mitts said, "Ni**ers, ni**ers, I'm just sick and tired of ni**ers." Mitts aimed directly at Bryant, Griffin heard a shot, and Bryant fell down. Mitts then walked away, sporadically firing his gun, and later walked back toward Griffin, still firing his weapon, but now in her direction.

In the meantime, Walters and Terry Rhone, Timothy's brother, came out to help Bryant. Mitts aimed his gun and shouted at them, "Leave him there, don't move." Walters and Terry Rhone disregarded Mitts's instruction and carried Bryant into their second-floor apartment. Around 8:15 p.m., Patrolman John Cermak arrived, and a bystander saw Mitts put a new clip in his gun. Taking "a ready firing position," Mitts fired several shots at Patrolman Cermak, forcing Cermak to drive his car up on a lawn and take cover. Lt. Kaiser and Sergeant Dennis Glivar then arrived. After firing at Patrolman Cermak, Mitts retreated to his first-floor apartment.

Patrolman Cermak searched for Mitts, and Lt. Kaiser and Sgt. Glivar went to the apartment building's second floor, where they found Griffin, Bryant, and the Rhone family. After calling paramedics, Lt. Kaiser and Sgt. Glivar walked down to the first floor. As Lt. Kaiser and Sgt. Glivar approached Mitts's apartment, Mitts flung his apartment door open and opened fire with a gun in each hand. Mitts repeatedly shot Sgt. Glivar, forcing him to drop his shotgun, and he shot Lt. Kaiser in the chest and right hand. Lt. Kaiser switched his pistol to his left hand and forced Mitts to retreat by firing three or four times. Lt. Kaiser returned to the Rhone apartment, where he kept a watch on Mitts's apartment, and radioed for police assistance including the area SWAT team. Although wounded, Lt. Kaiser attempted for twenty to thirty minutes to talk Mitts into surrendering, but Mitts replied, "The only way we're going to end this is if you kill me. You have to come down, you have to do your job and you have to kill me."

Mitts, who had overheard Lt. Kaiser's SWAT request over Sgt. Glivar's abandoned police radio, additionally told Lt. Kaiser, "Go ahead, bring the SWAT team in, I have thousands of rounds of ammunition. I'll kill your whole SWAT team. I'll kill your whole police department." Mitts also threatened Griffin; Mitts told Lt. Kaiser that he was "going to come up and kill that ni**er-loving bitch that's upstairs with you." Mitts also told Lt. Kaiser that he had been drinking bourbon and was angry because the Grand River Police Chief "stole my wife." Eventually, Patrolman Cermak dragged Sgt. Glivar's body from the hallway and Patrolman Cermak and others used a ladder and rescued Rhone's family and Lt. Kaiser from the upstairs apartment.

During the standoff, Mitts called his ex-wife, Janice Salerno, and her husband, Grand River Police Chief Jonathon Salerno. Chief Salerno thought Mitts was joking when Mitts told him that "it's all over with now, I shot a couple of cops and I killed a fucking ni**er." Chief Salerno, who believed Mitts was drunk, tried to talk him into surrendering, but Mitts refused. Mitts claimed that he had intended to kill both Salerno and his wife, but did not because Mitts's daughter, Melanie, lived with the Salernos.

Around 8:40 p.m., Maple Heights Police Officer John Mackey responded to the call for police assistance from the city of Garfield Heights. After helping Patrolman Cermak rescued Lt. Kaiser and the Rhone family, Officer Mackey, Sergeant Robert Sackett, and others took tactical positions in the hallway outside Mitts's apartment. Taking over Lt. Kaiser's role as a negotiator, Officer Mackey talked with Mitts for over thirty minutes, but Mitts refused to surrender and, at various times, continued to fire shots. Using Sgt. Glivar's shotgun, Mitts fired twice into a mailbox across the hall, and he also emptied ten pistol shots into that mailbox. According to Officer Mackey, Mitts's voice appeared calm, and he "never showed any anger or animosity towards" the officers.

Around 9:30 p.m., Mitts discerned Officer Mackey's position in the upstairs apartment from the sound of his voice and fired up the stairway and through a wall, hitting Officer Mackey's leg with a bullet fragment. Other police officers returned fire and rescued Officer Mackey. Around 1:00 a.m., the SWAT team injected tear gas into Mitts's apartment and finally subdued Mitts around 2:00 a.m. Mitts, who had been shot during the standoff, was taken by ambulance to a local hospital, then transported by helicopter to a trauma center at Cleveland's MetroHealth Medical Center. At 3:43 p.m., a blood sample was drawn from Mitts, and his blood-alcohol level was later determined to be .21 grams per one hundred milliliters.

After arresting Mitts, detectives searched his apartment and found two sets of shooting earmuffs, a yellow pair of glasses customarily used on shooting ranges, a .44 caliber magnum revolver, a 9 mm automatic pistol, a .22 caliber pistol, a laser gun-sight, thousands of rounds of ammunition in boxes, and two nearly empty liquor bottles. The police later learned that Mitts had spent the afternoon target shooting at the Stonewall Range, a firing range.

Upstairs in apartment 204, detectives found Bryant's body. Dr. Heather Raaf, a forensic pathologist, performed autopsies on John Bryant and Sgt. Dennis Glivar. Bryant bled to death within thirty minutes as a result of a single gunshot wound to his chest piercing both lungs and tearing the aorta. Sgt. Glivar died within "a few minutes" from five gunshots to the trunk causing perforations of his lung, heart, liver, kidney, stomach, and intestines. Sgt. Glivar also had been shot in the left shoulder and forearm. Dr. Raaf recovered multiple bullets or fragments from Sgt. Glivar's body and one small-caliber bullet from Bryant's body.

A grand jury indicted Mitts for the aggravated murders of Sgt. Dennis Glivar and John Bryant and the attempted murders of Lt. Thomas Kaiser and Officer John Mackey. As death penalty specifications, the prosecution charged that Mitts knowingly murdered a peace officer in the performance of his duties. Both aggravated murder counts contained three separate course-of-conduct specifications relating to the other three shooting victims. All four counts also had firearms specifications, and the attempted murder counts added a specification that the victims were peace officers. At trial, Mitts did not contest the evidence proving the facts, but instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

Appellant, Harry D. Mitts, appeals from his convictions and sentence to death for the aggravated murders of Sergeant Dennis Glivar and John Bryant and the attempted murders of Lieutenant Thomas Kaiser and Officer John Mackey.

On the evening of August 14, 1994, Timothy Rhone helped his sister and brother-in-law, Jeff Walters, move into their apartment. The apartment was on the second floor in the same building where Mitts lived. Between 7:00 and 8:00 p.m., Rhone noticed a man, who he later learned was Mitts, carrying a gun tucked into the small of his back. Fifteen to thirty minutes later, Mitts, who was wearing blue target-shooting earmuffs, confronted Rhone in the hallway. According to Rhone, Mitts pointed a "black and huge" laser-sighted gun at Rhone's head and "told [him] to get out or [he] was going to fucking die." When Rhone replied that he did not understand, Mitts said, "I'm not joking, get out now." Rhone backed away and asked his mother and sister to call 9-1-1 because "a man with a gun [was] threatening to shoot people."

A short time later, Tracey Griffin and her boyfriend, John Bryant, saw Mitts walking toward them wearing yellow glasses or goggles and carrying a gun. Griffin knew Mitts because they lived in the same apartment complex and their daughters had played together. Mitts's gun emitted a light, and Griffin saw a dot of red light appear on Bryant's chest. Mitts said, "Niggers, niggers, I'm just sick and tired of niggers." Mitts aimed directly at Bryant, Griffin heard a shot, and Bryant fell down.
Mitts then walked away, sporadically firing his gun, and later walked back toward Griffin, still firing his weapon, but now in her direction. In the meantime, Walters and Terry Rhone, Timothy's brother, came out to help Bryant. Mitts aimed his gun and shouted at them, "Leave him there, don't move." Walters and Terry Rhone disregarded Mitts's instruction and carried Bryant into their second-floor apartment.

Around 8:15 p.m., Patrolman John Cermak arrived, and a bystander saw Mitts put a new clip in his gun. Taking "a ready [firing] position," Mitts fired several shots at Patrolman Cermak, forcing Cermak to drive his car up on a lawn and take cover. Lt. Kaiser and Sergeant Dennis Glivar then arrived. After firing at Patrolman Cermak, Mitts retreated to his first-floor apartment. Patrolman Cermak searched for Mitts, and Lt. Kaiser and Sgt. Glivar went to the apartment building's second floor, where they found Griffin, Bryant, and the Rhone family. After calling paramedics, Lt. Kaiser and Sgt. Glivar walked down to the first floor.
As Lt. Kaiser and Sgt. Glivar approached Mitts's apartment, Mitts flung his apartment door open and opened fire with a gun in each hand. Mitts repeatedly shot Sgt. Glivar, forcing him to drop his shotgun, and he shot Lt. Kaiser in the chest and right hand. Lt. Kaiser switched his pistol to his left hand and forced Mitts to retreat by firing three or four times. Lt. Kaiser returned to the Rhone apartment, where he kept a watch on Mitts's apartment, and radioed for police assistance including the area S.W.A.T. team.

Although wounded, Lt. Kaiser attempted for twenty to thirty minutes to talk Mitts into surrendering, but Mitts replied, "The only way we're going to end this is if you kill me. You have to come down, you have to do your job and you have to kill me." Mitts, who had overheard Lt. Kaiser's S.W.A.T. request over Sgt. Glivar's abandoned police radio, additionally told Lt. Kaiser, "Go ahead, bring the S.W.A.T. team in, I have thousands of rounds of ammunition. I'll kill your whole S.W.A.T. team. I'll kill your whole police department * * * ."
Mitts also threatened Griffin; Mitts told Lt. Kaiser that he was "going to come up and kill that nigger-loving bitch that's upstairs with you." Mitts also told Lt. Kaiser that he had been drinking bourbon and was angry because the Grand River Police Chief "stole [his] wife." Eventually, Patrolman Cermak dragged Sgt. Glivar's body from the hallway and Patrolman Cermak and others used a ladder and rescued Rhone's family and Lt. Kaiser from the upstairs apartment.

During the standoff, Mitts called his ex-wife, Janice Salerno, and her husband, Grand River Police Chief Jonathon Salerno. Chief Salerno thought Mitts was joking when Mitts told him that "it's all over with now, I shot a couple of cops and I killed a fucking nigger." Chief Salerno, who believed Mitts was drunk, tried to talk him into surrendering, but Mitts refused. Mitts claimed that he had intended to kill both Salerno and his wife, but did not because Mitts's daughter, Melanie, lived with the Salernos.

Around 8:40 p.m., Maple Heights Police Officer John Mackey responded to the call for police assistance from the city of Garfield Heights. After helping Patrolman Cermak rescue Lt. Kaiser and the Rhone family, Officer Mackey, Sergeant Robert Sackett, and others took tactical positions in the hallway outside Mitts's apartment. Taking over Lt. Kaiser's role as a negotiator, Officer Mackey talked with Mitts for over thirty minutes, but Mitts refused to surrender and, at various times, continued to fire shots. Using Sgt. Glivar's shotgun, Mitts fired twice into a mailbox across the hall, and he also emptied ten pistol shots into that mailbox. According to Officer Mackey, Mitts's voice appeared calm, and he "never showed any anger or * * * animosity towards" the officers.
Around 9:30 p.m., Mitts discerned Officer Mackey's position in the upstairs apartment from the sound of his voice and fired up the stairway and through a wall, hitting Officer Mackey's leg with a bullet fragment. Other police officers returned fire and rescued Officer Mackey.

Around 1:00 a.m., the S.W.A.T. team injected tear gas into Mitts's apartment and finally subdued Mitts around 2:00 a.m. Mitts, who had been shot during the standoff, was taken by ambulance to a local hospital, then transported by helicopter to a trauma center at Cleveland's MetroHealth Medical Center. At 3:43 p.m., a blood sample was drawn from Mitts, and his blood-alcohol level was later determined to be .21 grams per one hundred milliliters.
After arresting Mitts, detectives searched his apartment and found two sets of shooting earmuffs, a yellow pair of glasses customarily used on shooting ranges, a .44 caliber magnum revolver, a 9 mm automatic pistol, a .22 caliber pistol, a laser gun-sight, thousands of rounds of ammunition in boxes, and two nearly empty liquor bottles. The police later learned that Mitts had spent the afternoon target shooting at the Stonewall Range, a firing range. Upstairs in apartment 204, detectives found Bryant's body.

Dr. Heather Raaf, a forensic pathologist, performed autopsies on John Bryant and Sgt. Dennis Glivar. Bryant bled to death within thirty minutes as a result of a single gunshot wound to his chest piercing both lungs and tearing the aorta. Sgt. Glivar died within "a few minutes" from five gunshots to the trunk causing perforations of his lung, heart, liver, kidney, stomach, and intestines. Sgt. Glivar also had been shot in the left shoulder and forearm. Dr. Raaf recovered multiple bullets or fragments from Sgt. Glivar's body and one small-caliber bullet from Bryant's body.

A grand jury indicted Mitts for the aggravated murders of Sgt. Dennis Glivar (Count One) and John Bryant (Count Two) and the attempted murders of Lt. Thomas Kaiser (Count Three) and Officer John Mackey (Count Four). As death penalty specifications, Count One charged that Mitts knowingly murdered a peace officer in the performance of his duties, R.C. 2929.04(A)(6). Both aggravated murder counts contained three separate course-of-conduct specifications relating to the other three shooting victims. See R.C. 2929.04(A)(5). All four counts also had firearms specifications, and Counts Three and Four added a specification that the victims were peace officers.
At trial, Mitts did not contest the evidence proving the facts, but instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders. The court of appeals affirmed the convictions and sentences.
The cause is now before this court upon an appeal as of right.

PROCEDURAL POSTURE: Defendant challenged the judgment from the Court of Appeals for Cuyahoga County (Ohio), which convicted him of aggravated murders and attempted murders and convicted him to death.

OVERVIEW: Defendant argued on appeal that the trial court erred in not allowing a psychiatrist to answer a hypothetical question during the guilt-phase testimony. The court affirmed the conviction and sentence. Except in the mitigation phase, defendant could not offer expert psychiatric testimony, unrelated to an insanity defense, to show that he lacked the mental capacity to form the specific mental state required for the crime. The court held that voluntary intoxication was not a defense to any crime. Nonetheless, where specific intent was a necessary element, and if intoxication precluded the formation of such intent, the fact of intoxication could be shown to negative this element. However, defendant displayed no signs of intoxication. The court held that under Ohio law, a jury had no option of recommending whether life sentences were to run consecutively or concurrently. The determination was for the judge. Defendant's claims of ineffective assistance of counsel did not meet the Strickland standard. Defendant's sentence was appropriate and proportionate with similar capital cases.

OUTCOME: The court affirmed defendant's conviction and death sentence. Evidence of intoxication did not support a verdict for acquittal, and defendant failed to demonstrate that counsel was deficient or that his performance fell below an objective standard of reasonable representation.

COOK, J. In this appeal, Mitts advances eleven propositions of law. Finding none meritorious, we affirm his convictions. In accordance with the mandate of R.C. 2929.05(A), we have considered each of Mitts's propositions of law and have reviewed the sentence for appropriateness and proportionality.
We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each proposition of law raised in a capital case. See, e.g., State v. Keith (1997), 79 Ohio St. 3d 514, 517, 684 N.E.2d 47, 54; State v. Allen (1995), 73 Ohio St. 3d 626, 628, 653 N.E.2d 675, 680. Accordingly, we reject the eleventh proposition of law, a familiar attack on the constitutionality of Ohio's death-penalty statutes, for reasons we have often stated before. We address the remainder of the propositions of law below and for the reasons that follow we affirm the judgment of the court of appeals.

I. The Guilt Phase

In his second proposition of law, Mitts argues that the trial court erred in not allowing Dr. Sonya McKee, a psychiatrist, to answer a hypothetical question during her guilt-phase testimony.
At trial, the defense called Dr. McKee, who testified that she had examined Mitts and found him competent, not suffering from any mental disease or defect, and responsible for his acts. Dr. McKee did think that Mitts was intoxicated on the day of the offenses and suffering from impaired memory as a result, and she answered various hypothetical questions on those points. But the court sustained the state's objection to a question concerning a hypothetical man, "B," who hated "black people [and] police officers," then got drunk, and shot a black man and a police officer. This question contrasted "B" with a hypothetical person, "A," presumably Mitts, who did not dislike blacks or police officers.

Initially, we note that Mitts did not preserve this issue for review by proffering the substance of the excluded testimony. See Evid.R. 103(A)(2); State v. Gilmore (1986), 28 Ohio St. 3d 190, 28 Ohio B. Rep. 278, 503 N.E.2d 147, syllabus. Even if it was properly preserved, we would find no abuse of discretion in the exclusion of this evidence. See State v. Williams (1996), 74 Ohio St. 3d 569, 576, 660 N.E.2d 724, 732, citing State v. Williams (1983), 4 Ohio St. 3d 53, 4 Ohio B. Rep. 144, 446 N.E.2d 444, syllabus. Under Evid.R. 403(A), the trial court must exclude evidence "if its probative value is substantially outweighed by the danger of * * * confusion of the issues, or misleading the jury." Defense counsel's attempt to secure Dr. McKee's opinion contrasting two hypothetical persons was misleading and confusing.
Moreover, the trial court could have excluded the testimony because, except in the mitigation phase, "a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." State v. Cooey (1989), 46 Ohio St. 3d 20, 26, 544 N.E.2d 895, 906; accord State v. Wilcox (1982), 70 Ohio St. 2d 182, 194, 24 Ohio Op. 3d 284, 291, 436 N.E.2d 523, 530; State v. Slagle (1992), 65 Ohio St. 3d 597, 607, 605 N.E.2d 916, 927; State v. Huertas (1990), 51 Ohio St. 3d 22, 27, 553 N.E.2d 1058, 1065 (rejecting expert witnesses as to the effect of intoxication). Thus, we reject Mitts's second proposition of law.

By his fourth proposition of law, Mitts challenges the trial court's refusal to instruct the jury on voluntary intoxication when "a reasonable jury could find that the defendant could not form the requisite intent due to * * * inebriation."
As we recognized in State v. Fox (1981), 68 Ohio St. 2d 53, 54-55, 22 Ohio Op. 3d 259, 260, 428 N.E.2d 410, 411, "the common law and statutory rule in American jurisprudence is that voluntary intoxication is not a defense to any crime." Nonetheless, "where specific intent is a necessary element, * * * if the intoxication was such as to preclude the formation of such intent, the fact of intoxication may be shown to negative this element." Fox, 68 Ohio St. 2d at 55, 22 Ohio Op. 3d at 260, 428 N.E.2d at 411-412.
In denying the defense request for an instruction on intoxication, the trial court relied on State v. Hicks (1989), 43 Ohio St. 3d 72, 538 N.E.2d 1030. In Hicks, the trial court did not instruct on voluntary intoxication despite evidence of intoxication. On appeal Hicks claimed that he was so intoxicated, through cocaine, that he could not form the specific intent to kill. The Hicks court recognized that "the issue of intoxication is not raised as a defense to the element of purpose * * * merely because the evidence suggests reduced inhibitions, impaired judgment or blurred appreciation by the defendant of the consequences of his conduct." Id. at syllabus.

It is within the sound discretion of the trial court to determine whether the evidence is sufficient to require a jury instruction on intoxication. State v. Wolons (1989), 44 Ohio St. 3d 64, 541 N.E.2d 443, paragraph two of the syllabus; State v. Fox, 68 Ohio St. 2d 53, 22 Ohio Op. 3d 259, 428 N.E.2d 410. Evidence of intoxication is sufficient to raise the intoxication defense only where, if believed, it would support acquittal. State v. Hicks, 43 Ohio St. 3d at 75, 538 N.E.2d at 1034.
Here, there was evidence that Mitts was intoxicated during the police standoff, but the jury still could not have reasonably found that he lacked the capacity to form a specific intent to kill at the time of the murders. Testimony from witnesses who observed Mitts before or during the shootings does not support a finding that Mitts was so intoxicated that he did not intend what he was doing when he shot the victims. Around 8:00 p.m., when Timothy Rhone encountered Mitts in the hallway, Mitts displayed no signs of intoxication. Mitts held the gun "perfectly steady" when he aimed it at Rhone's head. After 8:00 p.m., when Griffin saw Mitts walk up, aim, and shoot Bryant, Mitts was not staggering. Daniel O'Brien saw Mitts just after he killed Bryant and when Mitts shot at the first responding police car. O'Brien testified that Mitts was not staggering as he walked around, and he had no trouble ejecting the clip from his weapon, reloading, and firing several times at a police car.

Between 8:30 and 9:00 p.m., after Mitts shot Lt. Kaiser and Sgt. Glivar, Lt. Kaiser tried to negotiate with Mitts for twenty or thirty minutes. Mitts threatened to kill Bryant's girlfriend, Griffin, as well as the entire police department. By refusing to surrender and demanding that the police come to his apartment and kill him, Mitts demonstrated that he was acting purposefully and knew what he had done and what he was doing. At that time, Mitts said he had been drinking, but he did not say how much and his speech was not slurred.
Officer Mackey, who talked with Mitts even later, also noted that Mitts said he had been drinking, but Mitts was "calm" and "never angry," and his speech pattern did not indicate intoxication. Further, Mitts read the label on Glivar's shotgun and fired it twice, although he was unfamiliar with that weapon. Sgt. Robert Sackett, who joined in Mitts's lengthy conversations with Officer Mackey, thought Mitts seemed "completely sober."
Chief Salerno, who first talked with Mitts around 8:30 p.m. during the police standoff, testified that Mitts would "giggle and laugh" at times, and at other times would "start getting angry." Mitts told Salerno that he had finished drinking a bottle of bourbon and was now drinking scotch. Salerno thought Mitts was drunk, but Mitts told him exactly what he had done, i.e., killed a black man and shot two police officers. Detective Ronald Arco also thought Mitts was intoxicated when he overheard Mitts on the telephone around 9:42 p.m.

Police Sergeant Gary Wolske, who stayed with Mitts after he was arrested around 2:00 a.m., described him as quiet, neither combative nor confused, and apparently sober. A nurse who first treated Mitts testified that he displayed no signs of intoxication. A Life Flight nurse, who saw Mitts later, thought he had been drinking, but his speech was not impaired. Mitts indicated that he knew what he had done because he told the nurse, "I'm a cop killer and you might as well kill me now." Mitts also said, "I think I killed a nigger."
Mitts's strongest evidence of intoxication is his blood-alcohol level of .21 grams per one hundred milliliters taken at 3:43 a.m. Although the blood-alcohol level is evidence that Mitts was intoxicated at the time of the blood test, more than six hours after the shootings, it does not compel an intoxication instruction because the jury could not have inferred from it that the intoxication precluded Mitts from forming the intent to purposefully commit the murders.
The evidence of intoxication could not have supported a verdict of acquittal. The trial court was correct in determining that an intoxication instruction was not required. Accordingly, we reject the fourth proposition of law.

II. Penalty Phase

A. Instruction on Nature of Life Sentences

In his first proposition of law, Mitts argues that the trial court should have instructed the jury that it could recommend that Mitts receive consecutive life sentences on the two counts of aggravated murder. The trial judge denied Mitts's request for such an instruction. The court did not err by refusing to give Mitts's requested instruction because it is not an accurate statement of the law. See State v. Scott (1986), 26 Ohio St. 3d 92, 101, 26 Ohio B. Rep. 79, 87, 497 N.E.2d 55, 63. Under Ohio law, "[a] jury has no option of recommending whether life sentences should run consecutively or concurrently." State v. Allard (1996), 75 Ohio St. 3d 482, 492, 663 N.E.2d 1277, 1287, citing State v. Grant (1993), 67 Ohio St. 3d 465, 482, 620 N.E.2d 50, 69; see, also, R.C. 2929.03(D)(2).

Mitts next argues that the trial court's failure/refusal to tell the jury, in response to a question, that he could or would require that life sentences, if recommended, be served consecutively violated Mitts's rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. During penalty deliberations, the jury asked the judge, "Would a verdict of life imprisonment on count one and count two be served consecutively or concurrently?" The court answered that these aggravated murder counts "are separate and distinct counts. * * * The matter or the question as to consecutive or concurrent sentencing is up to the Court * * * ." Mitts contends that "the jury question implies that the life option may have been recommended had the jury been assured that the judge would or could order that the sentences be served consecutively."
In State v. Allard, 75 Ohio St. 3d at 492, 663 N.E.2d at 1287, when faced with the same issue, we responded that "assertions regarding the jury's possible motives for asking about consecutive and concurrent sentences are purely speculative" and "the trial court's response to the jury's question was proper, since a jury has no option of recommending whether life sentences should run consecutively or concurrently."

Mitts relies on Simmons v. South Carolina (1994), 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133. Simmons held that a trial judge violated an accused's due process rights by refusing to instruct the jury that a life sentence, under the facts and the applicable law, carried with it no possibility of parole. Mitts's reliance on Simmons is misplaced. In Simmons, South Carolina statutes prohibited Simmons's release on parole. This information was relevant given the prosecution's argument of Simmons's future dangerousness and the evidence that the public misunderstood the meaning of "life imprisonment" in South Carolina. In Simmons, a plurality reasoned that, to the extent that the jury's misunderstanding (that Simmons could be released on parole) pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. Id. By contrast, in Mitts's case the prosecutor did not argue future dangerousness and there was no misunderstanding by the jury -- the law in Ohio is that the judge is to make the determination of whether sentences will be served concurrently or consecutively.Moreover, counsel's argument that it was unrealistic to think that the trial judge would impose concurrent sentences here is speculative. Accordingly we overrule Mitts's first proposition of law.

B. Merger of Capital Specifications

In his third proposition of law, Mitts contends that the trial court's failure to merge duplicative capital specifications was prejudicial error because significant mitigating evidence existed. Both aggravated murder counts charged Mitts with three course-of-conduct specifications, R.C. 2929.04(A)(5). For example, Count One, alleging the aggravated murder of Sgt. Glivar, included specification three, a course-of-conduct specification in which Bryant was killed. Specification four alleged a course of conduct in which Mitts attempted to kill Lt. Kaiser, and specification five alleged a course of conduct in which Mitts attempted to murder Officer Mackey. Count Two, alleging the aggravated murder of Bryant, included three similar specifications concerning Sgt. Glivar, Lt. Kaiser, and Officer Mackey.

Multiple course-of-conduct specifications are duplicative and must be merged at the sentencing phase. See State v. Jenkins (1984), 15 Ohio St. 3d 164, 194-200, 15 Ohio B. Rep. 311, 337-342, 473 N.E.2d 264, 292-296. In fact, such multiple course-of-conduct specifications should not even be included in an indictment. In State v. Spisak (1988), 36 Ohio St. 3d 80, 84, 521 N.E.2d 800, 803, this court held that "each aggravated murder count should thus contain only one specification that appellant's acts were part of a course of conduct." Further, if such multiple specifications are included in an indictment, the "trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggravating circumstances against the mitigating factors." State v. Garner (1995), 74 Ohio St. 3d 49, 53, 656 N.E.2d 623, 630. No such instruction was given in this case. To determine whether that omission constituted reversible error we must engage in a two-pronged analysis. Id., citing State v. Jenkins, 15 Ohio St. 3d 164, 15 Ohio B. Rep. 311, 473 N.E.2d 264, at paragraph five of the syllabus. In the first prong we determine "whether the specifications at issue 'arose from the same act or indivisible course of conduct,' and were thus, in fact, duplicative." Id., quoting State v. Jenkins, 15 Ohio St. 3d 164, 15 Ohio B. Rep. 311, 473 N.E.2d 264, at paragraph five of the syllabus. The court of appeals correctly held, and the state concedes, that the specifications were duplicative.
For the second prong, we must "determine whether the jury's penalty-phase consideration of those duplicative aggravating circumstances affected its verdict, and independently determine whether the merged aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt." Id. "Merging of aggravating circumstances [can] take place upon appellate review," and "resentencing is not automatically required." State v. Jenkins, 15 Ohio St. 3d 164, 15 Ohio B. Rep. 311, 473 N.E.2d 264, at paragraph five of the syllabus; State v. Garner, 74 Ohio St. 3d at 53, 656 N.E.2d at 630; State v. Spisak, 36 Ohio St. 3d at 84, 521 N.E.2d at 803.

We find that the trial court's failure to instruct the jury that the duplicative specifications should be considered merged did not influence the jury to recommend the death penalty rather than life imprisonment. The outcome of the penalty hearing did not hinge on the failure to merge these three course-of-conduct specifications. We agree with the appellate court that merger of the duplicative course-of-conduct specifications into a single specification listing each shooting victim would not change the nature of the evidence which the jury was statutorily required to consider. Furthermore, the judge did not instruct the jury that its finding of guilt of multiple specifications should be deemed to increase the weight given the aggravating circumstances. Cf. State v. Penix (1987), 32 Ohio St. 3d 369, 372, 513 N.E.2d 744, 747.
Moreover, our independent weighing of the mitigating factors against the properly merged aggravating circumstances may be used to cure the penalty-phase error. State v. Combs (1991), 62 Ohio St. 3d 278, 286, 581 N.E.2d 1071, 1079; Clemons v. Mississippi (1990), 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725. Accordingly, we reject Mitts's third proposition of law.

C. Jury Instruction Issues

With his fifth proposition of law, Mitts argues that the trial court erred by instructing the jury that its sentencing verdict was only a recommendation and not binding on the court. Mitts's counsel failed to object at trial and waived all but plain error. State v. Slagle (1992), 65 Ohio St. 3d 597, 605, 605 N.E.2d 916, 925. Plain error is an obvious error or defect in the trial proceedings that affects a substantial right. Crim.R. 52(B). Under this standard, reversal is warranted only when the outcome of the trial would have been different without the error. State v. Long (1978), 53 Ohio St. 2d 91, 7 Ohio Op. 3d 178, 372 N.E.2d 804, paragraph two of the syllabus.
This court has previously held that the trial court does not err by referring to the jury's verdict as a recommendation or by recognizing that the trial court would make the final decision on the death penalty. See, e.g., State v. Woodard (1993), 68 Ohio St. 3d 70, 77, 623 N.E.2d 75, 80-81; State v. DePew (1988), 38 Ohio St. 3d 275, 280, 528 N.E.2d 542, 550; State v. Jenkins, 15 Ohio St. 3d 164, 15 Ohio B. Rep. 311, 473 N.E.2d 264, at paragraph six of the syllabus. Accordingly, we overrule Mitts's fifth proposition of law.

In his sixth proposition of law, Mitts raises three additional penalty-phase issues, but Mitts's counsel failed to object or request additional instructions and again waived all but plain error. State v. Williams (1977), 51 Ohio St. 2d 112, 5 Ohio Op. 3d 98, 364 N.E.2d 1364, paragraph one of the syllabus; State v. Underwood (1983), 3 Ohio St. 3d 12, 3 Ohio B. Rep. 360, 444 N.E.2d 1332, syllabus. First, Mitts argues that the trial court erred by giving the statutory definition of "reasonable doubt," as contained in R.C. 2901.05(D). In doing so, the trial court referred to the "truth of the charge." While this specific reference is inappropriate in the penalty-phase context, this deficiency was not outcome-determinative. See State v. Taylor (1997), 78 Ohio St. 3d 15, 29, 676 N.E.2d 82, 96; State v. Woodard, 68 Ohio St. 3d at 76-77, 623 N.E.2d at 80; State v. Spirko (1991), 59 Ohio St. 3d 1, 17, 570 N.E.2d 229, 248.

Second, Mitts argues that the trial court gave an improper "acquittal-first" instruction on its sentencing deliberations in violation of State v. Thomas (1988), 40 Ohio St. 3d 213, 533 N.E.2d 286. The court did not instruct the jury that it could consider lesser penalties only if it first unanimously rejected the death penalty. Instead, the court instructed that if all twelve members of the jury found that the state had not proved that the aggravating circumstances outweighed mitigating factors, then it must choose between the possible life sentences. That instruction is consistent with R.C. 2929.03(D)(2) and does not constitute error. State v. Taylor, 78 Ohio St. 3d at 28-29, 676 N.E.2d at 95; State v. Davis (1996), 76 Ohio St. 3d 107, 116-118, 666 N.E.2d 1099, 1108-1109.

Third, Mitts complains because the trial court instructed, without objection, that the jury "must not be influenced by any consideration of sympathy or prejudice," as opposed to the term "mere sympathy." Again, this issue lacks merit. Sympathy is not a relevant sentencing criteria, and "there is no practical difference between 'mere sympathy' and 'any sympathy' in this context." State v. Taylor, 78 Ohio St. 3d at 30, 676 N.E.2d at 96. The court's instruction to the jury not to consider sympathy or prejudice was a correct statement of the law. State v. Allen (1995), 73 Ohio St. 3d 626, 638, 653 N.E.2d 675, 687; State v. Steffen (1987), 31 Ohio St. 3d 111, 125, 31 Ohio B. Rep. 273, 285, 509 N.E.2d 383, 396; State v. Jenkins, 15 Ohio St. 3d 164, 15 Ohio B. Rep. 311, 473 N.E.2d 264, at paragraph three of the syllabus. Thus, we reject Mitts's sixth proposition of law.
With Proposition of Law VIII, Mitts argues that the trial court erred in refusing to instruct the jury that "it could consider as mitigating the fact that the appellant was highly intoxicated at the time of the offense." The court, however, followed the statutory language in R.C. 2929.04(B), and accurately stated the law by instructing the jury to consider the accused's "history, character and background," as well as his lack of a criminal record and "any other factors that are relative [sic] to the issue whether defendant should be sentenced to death."
Thus, the jury was allowed to consider all of the mitigation evidence including Mitts's asserted intoxication, as well as his counsel's argument that intoxication was a mitigating factor. The jury was not precluded from considering any evidence as mitigating. In State v. Landrum (1990), 53 Ohio St. 3d 107, 122, 559 N.E.2d 710, 727-728, we held that a trial judge did not err by simply following the statutory language and declining to instruct that particular evidence was a possible specific mitigating factor. We find that Mitts's eighth proposition of law lacks merit.

D. Ineffective Assistance of Counsel

In his seventh proposition of law, Mitts argues that his counsel's failure to object to improper jury instructions deprived him of his constitutional right to the effective assistance of counsel. Reversal of a conviction or sentence on the grounds of ineffective assistance of counsel requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693. To demonstrate that counsel is deficient, appellant must show that counsel's performance fell below an objective standard of reasonable representation. State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To demonstrate prejudice, appellant must prove that there exists a reasonable probability that were it not for counsel's error, the result of the trial would have been different. Id. at paragraph three of the syllabus.
Mitts's claims of ineffective assistance do not meet the Strickland standard. Since we have previously concluded that the trial court's "acquittal first" instruction, "reasonable doubt" definition, and use of the term "recommendation" were not erroneous, counsel's performance was not deficient for failing to raise these issues. (See discussion of Propositions of Law V and VI, above.)
As we discussed under Proposition of Law III, the course-of-conduct death-penalty specifications should have been merged. Any deficiency in counsel's failure to raise this issue, however, did not prejudice the defendant because, as we determined, the failure to merge was not outcome-determinative. Mitts also raises his counsel's failure to object to prosecutorial misconduct. On that point, however, Mitts fails to describe specifically any alleged prosecutorial misconduct. Hence, we reject this proposition of law.

E. Trial Court's Sentencing Opinion

In his tenth proposition of law, Mitts argues that the "trial court improperly weighed the relevant sentencing factors" in imposing the death sentence on Mitts.
In imposing a sentence, "the assessment and weight to be given mitigating evidence are matters for the trial court's determination." State v. Lott (1990), 51 Ohio St. 3d 160, 171, 555 N.E.2d 293, 305. The fact that mitigation evidence is admissible "does not automatically mean that it must be given any weight." State v. Steffen (1987), 31 Ohio St. 3d 111, 31 Ohio B. Rep. 273, 509 N.E.2d 383, paragraph two of the syllabus. See, also, State v. Stumpf (1987), 32 Ohio St. 3d 95, 512 N.E.2d 598, at paragraph two of the syllabus. R.C. 2929.03(F) does require, however, that the trial court state in its separate opinion its specific findings as to the existence of the mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances were sufficient to outweigh the mitigating factors. R.C. 2929.03(F); State v. Maurer (1984), 15 Ohio St. 3d 239, 15 Ohio B. Rep. 379, 473 N.E.2d 768, paragraph three of the syllabus.

We agree with Mitts that the trial court erred by not separately weighing the aggravating circumstances in each count of aggravated murder. State v. Cooey (1989), 46 Ohio St. 3d 20, 544 N.E.2d 895, paragraph three of the syllabus. The trial court also incorrectly stated that no evidence of any statutory mitigating factors existed; in fact, the evidence showed that Mitts had no criminal record. See R.C. 2929.04(B)(5). Although the trial court correctly identified the aggravating circumstances, the trial court did not merge the specifications as it should have done. (See discussion on Proposition of Law III.) Nor does the trial court's opinion explain why the aggravating circumstances outweighed the mitigating factors. See State v. Fox (1994), 69 Ohio St. 3d 183, 190-191, 631 N.E.2d 124, 130-131.
Despite these deficiencies in the trial court's opinion, we find that reversal is not required. The court of appeals already noted these defects and determined, after an independent sentence review, that the death penalty was appropriate. Further, our "independent review of a sentence will cure any flaws in the trial court's opinion." State v. Fox, 69 Ohio St. 3d at 191, 631 N.E.2d at 131. Accord State v. Hill (1996), 75 Ohio St. 3d 195, 210, 661 N.E.2d 1068, 1082; State v. Lott, 51 Ohio St. 3d at 170-173, 555 N.E.2d at 304-307. Accordingly, we overrule the tenth proposition of law.

III. Independent Sentence Assessment

In his ninth proposition of law, Mitts argues that "the proven aggravating factors * * * do not outweigh the mitigating factors," summarizes the mitigating evidence, and outlines various mitigating factors he draws from that evidence. We will consider these arguments in our independent sentence review.
Pursuant to R.C. 2929.05, we independently weigh the aggravating circumstances against the mitigating factors and determine whether Mitts's sentence is disproportionate to sentences in similar cases.
Sgt. Glivar's murder has two aggravating circumstances: (1) that the victim was a peace officer in the line of duty ( R.C. 2929.04[A][6]) and (2) that the murder was part of a course of conduct involving the purposeful killing or attempt to kill two or more persons ( R.C. 2929.04[A][5]). Bryant's murder carries only the course-of-conduct aggravating circumstance. The evidence proves these aggravating circumstances beyond a reasonable doubt.

We find that the nature and circumstances of these offenses do not offer the slightest mitigating value. In contrast, Mitts's history, character, and background are entitled to some mitigating weight. As several witnesses testified, Mitts was respected and loved by his family and was a devoted father. See State v. Fox, 69 Ohio St. 3d at 194, 631 N.E.2d at 133. Mitts's brother testified that Mitts was the oldest child in the family and that while growing up Mitts looked after the younger children. Mitts's sister described Mitts as "laid-back" and a "gentle giant," who was very protective of his brothers and sisters. Mitts served honorably for four years in the Coast Guard, and he was gainfully employed all of his life. See State v. Lundgren (1995), 73 Ohio St. 3d 474, 495, 653 N.E.2d 304, 324-325; State v. Fox, supra; State v. Simko (1994), 71 Ohio St. 3d 483, 496, 644 N.E.2d 345, 350; State v. Brewer (1990), 48 Ohio St. 3d 50, 64, 549 N.E.2d 491, 505. We accord all of these factors some mitigating weight.
R.C. 2929.04(B)(1) through (4) and (6) are not applicable in this case. The victims did not "induce or facilitate" the offenses and Mitts did not act under "duress, coercion or strong provocation." ( R.C. 2929.04[B][1] and [2].) The expert opinion testimony confirmed that Mitts did not suffer from any "mental disease or defect." ( R.C. 2929.04[B][3].) Mitts was forty-two years old at the time of the offenses and was the principal offender. ( R.C. 2929.04[B][4] and [6].)
Mitts had no criminal record, and this "noteworthy" mitigating factor in R.C. 2929.04(B)(5) is entitled to significant mitigating weight. See State v. Fox, 69 Ohio St. 3d at 195, 631 N.E.2d at 133-134.

As to "other factors" ( R.C. 2929.04[B][7]), Mitts claims remorse for his actions as well as the influence of alcohol as mitigating factors. Mitts's expression of remorse in his unsworn statement is entitled to some weight. See State v. Rojas (1992), 64 Ohio St. 3d 131, 143, 592 N.E.2d 1376, 1387. As to alcohol, Mitts presented no evidence that he was an alcoholic, and voluntary drunkenness is entitled to very little mitigating weight. See, e.g., State v. Slagle, 65 Ohio St. 3d at 614, 605 N.E.2d at 931.
We now weigh these mitigating factors against the aggravating circumstance(s) in each murder. "When a capital defendant is convicted of more than one count of aggravated murder, * * * only the aggravating circumstances related to a given count may be considered in assessing the penalty for that count." State v. Cooey (1989), 46 Ohio St. 3d 20, 544 N.E.2d 895, paragraph three of the syllabus. Based on the evidence, we find that the aggravating circumstances in the murder of Sgt. Glivar outweigh the mitigating factors. As to the murder of Bryant, we also find that the aggravating circumstance outweighs the mitigating factors.
We further conclude that the death penalty imposed for each aggravated murder is appropriate and proportionate when compared with similar capital cases. As to "course of conduct" murders, see State v. Allard (1996), 75 Ohio St. 3d 482, 663 N.E.2d 1277; State v. Williams (1996), 74 Ohio St. 3d 569, 660 N.E.2d 724; State v. Dunlap (1995), 73 Ohio St. 3d 308, 652 N.E.2d 988; State v. Loza (1994), 71 Ohio St. 3d 61, 641 N.E.2d 1082; State v. Grant (1993), 67 Ohio St. 3d 465, 620 N.E.2d 50; State v. Lorraine (1993), 66 Ohio St. 3d 414, 613 N.E.2d 212; State v. Hawkins (1993), 66 Ohio St. 3d 339, 612 N.E.2d 1227; State v. Montgomery (1991), 61 Ohio St. 3d 410, 575 N.E.2d 167; and State v. Combs (1991), 62 Ohio St. 3d 278, 581 N.E.2d 1071. When compared with prior cases involving the murder of a peace officer, the death penalty is also appropriate and proportionate. See, e.g., State v. Zuern (1987), 32 Ohio St. 3d 56, 512 N.E.2d 585; State v. Glenn (1986), 28 Ohio St. 3d 451, 28 Ohio B. Rep. 501, 504 N.E.2d 701.

APPENDIX
"Proposition of Law I: In a capital murder trial, the court must instruct the jury that it may recommend consecutive life sentences where the defendant has been convicted of two separate and distinct counts of aggravated murder. The failure to instruct properly is violative of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
"Proposition Law II: The trial court may not prohibit an expert witness from answering a hypothetical question where it is relevant and would assist the jury in analyzing the evidence.
"Proposition of Law III: Failing to merge capital specifications which results in jury consideration of duplicative aggravating factors cannot been [sic] held as harmless error where significant factors in mitigation were introduced into evidence.
"Proposition of Law IV: The trial court must charge the jury on the defense of voluntary intoxication where a reasonable jury could find that the defendant could not form the requisite intent due to his or her inebriation. The failure to provide the intrution [sic] is violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.
"Proposition of Law V: The trial court may not instruct the jury that its death verdict was only a recommendation but a life verdict was binding on the court.
"Proposition of Law VI: Inaccurate penalty phase instructions that misguide the jury as to their duties under the law render the resultant sentence unreliable and violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 9, 10 and 16, Article I, of the Ohio Constitution.
"Proposition of Law VII: Where trial counsel fails to object to erroneous jury instructions and improper comments of the prosecutor, the defendant is denied effective assistance of counsel where there is a reasonable probability that the death sentence would not have been recommended had counsel made the objections.
"Proposition of Law VIII: The trial court may not refuse to provide relevant mitigating instructions to the penalty phase jury. The refusal to instruct is in contravention of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
"Proposition of Law IX: Where the proven aggravating factors in the evidence do not outweigh the mitigating factors present pursuant to Ohio Rev.Code § 2929.03, a sentence of the death sentence [is] violative of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.
"Proposition of Law X: The trial court improperly weighed the relevant sentencing factors inviolation [sic] of R.C. 2929.03(F).
"Proposition of Law XI: Imposition of the death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I, of the Ohio Constitution."

Mitts v. Bagley, 620 F.3d 650 (6th Cir. 2010). (Habeas)

PROCEDURAL POSTURE: Petitioner state prisoner filed a petition in the United States District Court for the Northern District of Ohio at Cleveland under 28 U.S.C.S. § 2254 for a writ of habeas corpus. The district court denied the petition. The prisoner appealed.

OVERVIEW: The prisoner was sentenced to death in an Ohio state court for shooting two men to death, one of them a police officer. The trial court instructed the jury during the penalty phase that it was first required to determine whether the aggravating elements necessary for a mandatory death penalty were present and to impose the death penalty if the aggravating elements predominated over the mitigating factors; only if the prisoner were first acquitted of the death penalty could the jury have considered life imprisonment. The court of appeals held that the prisoner had not waived a challenge that the jury instructions violated Beck v. Alabama. The prisoner's due process rights were violated because the instructions required a mandatory death sentence that could only be avoided by an acquittal before the jury could consider life imprisonment. The prisoner also established that trial counsel's performance was deficient; counsel presented a single intoxication-related defense that was not supported by the facts and the law and also failed to reasonably investigate mitigating sentencing factors. However, the prisoner failed to establish prejudice resulting from counsel's failures.

OUTCOME: The district court's judgment was reversed as to the jury instructions issue and was affirmed as to the ineffective assistance claims. The case was remanded with instructions to issue a writ of habeas corpus vacating the prisoner's death sentence unless a new penalty phase proceeding was conducted.

OPINION BY MERRITT, Circuit Judge.

This Ohio death penalty case turns on the validity of certain jury instructions that impose a mandatory death penalty that must be addressed first by the jury before consideration is given to life imprisonment. The Ohio "acquittal first" death penalty instructions in this case are the same Ohio instructions that were given in the recent case of Smith v. Spisak, 554 U.S. , 130 S. Ct. 676, 175 L. Ed. 2d 595 (2010). In Spisak, the Supreme Court held that in light of AEDPA the instructions did not violate the mitigation-unanimity holding of Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). The essential constitutional question before us now is whether we should follow Justice Stevens' concurring opinion in the Spisak case, which concludes that, although the instructions do not violate Mills, the instructions do violate the principles of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Justice Stevens, in his concurrence in Spisak, agreed that, "Mills does not clearly establish [under AEDPA] that the instructions at issue were unconstitutional. But, in my view, our decision in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), does." 130 S. Ct. at 689, 175 L. Ed. 2d 595 (Stevens, J., concurring). No other justice reached this Beck issue or stated an agreement or disagreement with Justice Stevens' view. Justice Stevens in his Spisak concurrence lays out his view that the principles of the Beck case constitute clearly established law under AEDPA and should invalidate the same jury instructions in Spisak that were repeated in the instant case. In light of Justice Stevens' concurrence, we asked the parties for supplemental briefing analyzing this case in light of Beck.
In essence, the jury instructions in the case before us require the jury to first determine whether the aggravating elements necessary for a mandatory death penalty are present and to impose the death penalty if the aggravating elements predominate: "If you make such a finding then you must recommend to the court that a sentence of death be imposed on the defendant, Harry D. Mitts, Jr." (Emphasis added.) Only if the jury first acquits the defendant of the death penalty may the jury consider life imprisonment or any lesser-included offense.
After rejecting the State's preliminary argument that Mitts has waived and procedurally defaulted his constitutional argument against the mandatory, "acquittal first" death penalty instructions, we consider and accept Justice Stevens' opinion that these death penalty instructions violate the principles announced in Beck v. Alabama, supra. We then consider two other issues raised by Mitts respecting the ineffective assistance of counsel at the trial and guilt phases of the case and find them to be without merit.

I. 1 A full account of the relevant facts can be found in State v. Mitts, 81 Ohio St. 3d 223, 1998 Ohio 635, 690 N.E.2d 522, 524-26 (Ohio 1998).

Mitts, an Ohio prisoner under penalty of death, appeals the district court judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On the evening of August 14, 1994, Mitts drank bourbon until he became intoxicated and then shot and killed Bryant, an African American man, while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed Sergeant Glivar and wounded Lieutenant Kaiser and Officer Mackey before being apprehended.
At trial, Mitts did not contest the evidence proving that he had killed Bryant and Sgt. Gliver, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

The Ohio Court of Appeals affirmed Mitts' convictions and sentences in December 1996. State v. Mitts, No. 68612, 1996 Ohio App. LEXIS 5790, 1996 WL 732452 (Ohio Ct. App. Dec. 19, 1996). The Ohio Supreme Court affirmed the convictions and sentences in March 1998, and it denied rehearing in June 1998. The court ruled that the trial court should have instructed the jury to merge duplicative death penalty specifications, but it held that the error did not influence the jury and was cured by re-weighing on appeal. Mitts, 690 N.E.2d at 530.
Mitts filed a petition for post-conviction relief in September 1996 and an amended petition in March 1999. The trial court denied the petition in August 1999, and the Ohio Court of Appeals affirmed that decision in September 2000. State v. Mitts, No. 76963, 2000 Ohio App. LEXIS 4525, 2000 WL 1433952 (Ohio Ct. App. Sept. 28, 2000). The Ohio Supreme Court denied further review. In April 2001, Mitts filed an application to reopen his direct appeal, alleging ineffective assistance of appellate counsel pursuant to Rule 26(B) and State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (Ohio 1992). The Ohio Court of Appeals denied the motion in May 2002. State v. Mitts, No. 68612, 2002 Ohio 7457, 2002 WL 1335629 (Ohio Ct. App. May 10, 2002). The Ohio Supreme Court affirmed that decision. State v. Mitts, 98 Ohio St. 3d 325, 2003 Ohio 1007, 784 N.E.2d 698 (Ohio 2003).

Mitts filed his petition for a writ of habeas corpus in the district court in October 2003, raising twelve claims. After a period of discovery, the district court dismissed the petition on all asserted claims of error in a comprehensive opinion. Mitts v. Bagley, No. 1:03CV1131, 2005 U.S. Dist. LEXIS 44018, 2005 WL 2416929 (N.D. Ohio Sept. 29, 2005). Mitts timely appealed.
Mitts' federal habeas petition was filed subsequent to the passage of AEDPA in 1996, and thus its provisions govern this court's review. Under AEDPA, a federal court may not grant habeas relief unless the state court's adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Under the "unreasonable application" prong of this section, the prong most relevant to the instant case, "[a] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly." Price v. Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L. Ed. 2d 877 (2003). Rather, "[i]n order for a federal court to find a state court's application . . . 'unreasonable,' the state court's decision must have been more than incorrect or erroneous[;] [it] must have been 'objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). As this court has stated, "a federal habeas court must ask whether the state court's application of clearly established federal law was objectively reasonable. If the federal court finds that, viewed objectively, the state court has correctly identified the governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the prisoner's case, it may grant the writ." Millender v. Adams, 376 F.3d 520, 523 (6th Cir. 2004).

In analyzing whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, a federal court may only look to the holdings of the Supreme Court's decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Williams, 529 U.S. at 412. The court may look to lower court of appeals' decisions to the extent they illuminate the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003). Finally, the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court's factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004).
We certified appealability of Mitts' following claims: (1) unconstitutional penalty-phase instructions; (2) ineffective assistance of counsel in the guilt phase of trial; and (3) ineffective assistance of counsel in the penalty phase of trial.

II.

The State asserts waiver and procedural default as the basis for its argument that we should not reach the merits of Mitts' constitutional claim that the jury instructions in his case are improper. The State's argument is that Mitts "has never challenged his jury instructions under Beck, and no previous court in this case has ever referred to Beck." Supplemental Brief of Respondent-Appellee at 22. This statement is mistaken. Here the State's highest court considered on direct appeal a federal constitutional claim attacking precisely the same jury instruction and disposed of the appeal by citing one of its earlier cases that decided the same claim by reference to the same U.S. Supreme Court case, Beck v. Alabama. Thus, we have the Ohio Supreme Court in this case referring to an earlier Ohio Supreme Court case deciding the constitutionality of the same acquittal first mandatory death penalty instructions and doing so based on its interpretation of Beck v. Alabama, the case that is the basis of Mitts' theory here.

In rejecting Mitts' argument that the specific jury instructions at issue here -- "if you make such a finding then you must recommend to the court that a sentence of death be imposed" -- the Ohio Supreme Court simply referred to an earlier Ohio Supreme Court case that had discussed Beck v. Alabama when finding "acquittal first" instructions improper. State v. Mitts, 690 N.E.2d at 531, simply referred the reader to the state case of State v. Thomas, in which the Court declined to invalidate the mandatory instruction based on harmless error:
This instruction does not expressly require unanimous acquittal on the charged crime . . . . The arguments of the parties as to the prejudicial effect, if any, of such instruction are somewhat less than clear. In our opinion, this instruction has negligible coercive potential because it speaks to the jury's inability to find, whether unanimously or not, a certain element of the greater offense.
40 Ohio St. 3d 213, 533 N.E.2d 286, 293 (1988). This conclusion follows its discussion of the Beck case:
The United States Supreme Court has expressly declined to hold whether or not a defendant is entitled to a lesser included offense instruction [on life imprisonment] as a matter of constitutional due process. Keeble v. United States (1973), 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844; Beck v. Alabama (1979), 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392, but has noted that "the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." Id.

Thus, in Mitts' case the Ohio Supreme Court relies on the earlier Thomas case which rejects Beck v. Alabama as a basis for invalidating the jury instruction at issue. Perhaps the reference to the Beck case in the Mitts opinion could have been more explicit and the discussion more detailed. But the State is mistaken in its view that "no previous court" has "referred" to or rejected Beck as a basis for invalidating this type of mandatory death penalty instruction.
Mitts has not waived his Beck claim. In both his direct appeal and in his petition to reopen his direct appeal, Mitts argued that the jury instructions in his case were unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Mitts raised this jury instruction issue in the state court. The Court referred to State v. Thomas -- a case which relies primarily on federal law including Beck. Federal review does not turn on the quality, comprehensiveness or correctness of the state court discussion of the federal issue. The Supreme Court has repeatedly found that when a state decision relies upon federal cases or other state cases that rely on federal law, the issue has not been waived and review by a federal court is appropriate. See, e.g., Ohio v. Robinette, 519 U.S. 33, 37, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) ("[T]he only cases [the opinion] discusses or even cites are federal cases, except for the one state case which itself applies the Federal Constitution"); Illinois v. Rodriguez, 497 U.S. 177, 182, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) ("The opinion does not rely on (or even mention) any specific provision of the Illinois Constitution, nor even the Illinois Constitution generally. Even the Illinois cases cited by the opinion rely on no constitutional provisions other than the Fourth and Fourteenth Amendments of the United States Constitution."); Michigan v. Chesternut, 486 U.S. 567, 571 n.3, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (state court decision relied on two state cases that each relied upon federal law). See also Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) ("unless the state court clearly expressed its reliance on an adequate and independent state-law ground, the Court may address the federal issue").

The State also argues that the Ohio Supreme Court only reached the federal question under "plain error" review and that we should decline review for this reason. Without "cause and prejudice" we do not address issues in which the state court has properly and fully invoked procedural default through application of a contemporaneous objection rule. Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001). However, in the case where the state court goes on thereafter to address the federal Constitutional question under "plain error" review, we may address that question. See Roy v. Coxon, 907 F.2d 385, 391 (2d Cir. 1990); see also Wainwright v. Greenfield, 474 U.S. 284, 289 n.3, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986) (collecting cases); Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) ("the additional holding of the state court . . . depends on the court's federal-law ruling and consequently does not present an independent state ground for the decision rendered"); Michigan v. Long, 463 U.S. 1032, 1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (state ground not independent "when it fairly appears that the state court rested its decision primarily on federal law"); Raley v. Ohio, 360 U.S. 423, 436, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959) ("There can be no question as to the proper presentation of a federal claim when the highest state court passes on it."); Manhattan Life Ins. Co. of New York v. Cohen, 234 U.S. 123, 134, 34 S. Ct. 874, 58 L. Ed. 1245 (1914) (duty to review "when it appears that such a question was actually considered and decided"); Habeas Relief for State Prisoners, 38 Geo. L.J. Ann. Rev. Crim. Proc. 892, 942 n.2722 (2009) (collecting cases). We now address the merits of the Beck jury instruction claim.

III.

The Ohio jury instructions in this case impose two rules on the jury. The first is a mandatory death penalty instruction that was recently upheld by the Supreme Court in a 5-4 decision in Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) (overruling Kansas Supreme Court invalidation of Kansas' mandatory death sentence), combined with an acquittal-first rule that tells the jury that, before they can consider mercy and some form of life imprisonment, they must determine whether the factors are present requiring imposition of the mandatory death penalty. Under this rule, the jurors may not extend mercy to the defendant until after they have weighed aggravators and mitigators and have acquitted the defendant of the elements that automatically impose the death penalty. The issue on the merits is the constitutionality of the combined effect of two rules that together require the jury as a first step, before considering mercy, to make a decision to acquit the defendant of the mandatory death sentence. Does this first step process requiring a decision on the mandatory death penalty interfere with the jury's ability to give independent weight to factors that could lead one or more jurors to prefer life imprisonment? Does the combined effect of the two rules run the risk of causing one or more jurors to neglect or omit the serious consideration of mercy and life imprisonment as a choice? Justice Stevens in Spisak explains the answer to these questions: the Ohio set of jury instructions, both by their literal language and their purpose, only allows for consideration of a sentence of life after consideration of the mandatory death penalty is completed by a verdict of acquittal.

Since his direct appeal in 1996, Mitts has argued that the jury instructions in his case were unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The trial court in the Mitts case gave the jury a mandatory death penalty, acquittal-first instruction:
When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which Harry D. Mitts, Jr. has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.
I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on the defendant Harry D. Mitts, Jr.

On the other hand, after considering all of the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which the defendant, Harry D. Mitts, Jr., was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.
(R. 42, Tr. 153-55, Jury Instructions, App. 2436-38) (emphasis added). In an opinion by Justice Stevens, the Supreme Court held unconstitutional a mandatory death penalty rule that required the jury to return a death penalty verdict upon a finding that aggravators outweighed mitigators combined with a rule that the jury could not first consider "the third option" of a life sentence based on a lesser-included offense. 447 U.S. at 625. In Spisak, based on the same instruction before us in the instant case, Justice Stevens concluded that the instructions requiring the jury to first consider a mandatory death penalty without considering a "third option" of life imprisonment created the same basic constitutional error as in the Beck case:
The acquittal-first jury instructions used during Spisak's penalty phase interposed before the jury the same false choice that our holding in Beck prohibits. By requiring Spisak's jury to decide first whether the state had met its burden with respect to the death sentence, and to reach that decision unanimously, the instructions deprived the jury of a meaningful opportunity to consider the third option that was before it, namely, a life sentence. Indeed, these instructions are every bit as pernicious as those at issue in Beck because they would have resulted in a new trial and that, in any event, they could not give effect to their determination that a life sentence was appropriate unless and until they had first convinced each of their peers on the jury to reject the death sentence.
Spisak, 130 S. Ct. at 690-91. Having explained this problem of requiring the jury to focus first and decide first on the mandatory death penalty sentence, Justice Stevens concludes, "Spisak and the Court of Appeals both correctly assailed the jury instructions at issue in this case, but in my view Beck provides the proper basis in clearly established federal law to conclude the instructions were unconstitutional." Id. at 691 (emphasis added). 2
FOOTNOTES 2 Our dissenting colleague takes issue with Justice Stevens' statement that the Beck case is "clearly established federal law" for AEDPA purposes, claiming simply that "a concurring opinion" cannot constitute "clearly established law." Our colleague does not understand that we are simply agreeing with Justice Stevens that Beck itself, decided thirty years ago, is the clearly established law that invalidates these jury instructions.

In addition, the fact that Mitts did not specifically cite Beck in the court below in attacking these same jury instructions is not a waiver of Mitts' claim that, as Justice Stevens puts it, "the instructions deprive the jury of a meaningful opportunity to consider a third opinion that was before it, namely, a life sentence." This is the same basic argument Mitts made below and on appeal, except in a slightly different dress made by the same dress-maker out of the same cloth. We should not be distracted from addressing a fundamental constitutional argument by the label in the back, especially in a death penalty case. We should not struggle to avoid deciding fundamental constitutional issues so that the prisoner can go to his death without our considering a claim that may allow him to live.
The jury instructions at issue in Spisak are the same as those given by the Mitts Court. The Ohio Supreme Court held in Mitts that under Ohio law the jury could consider "possible life sentences" only "if all twelve members of the jury found that the State had not proved that the aggravating circumstances" predominated. 690 N.E.2d at 531. The Mitts Court cited Ohio Revised Code § 2929.03(D)(2) for its interpretation that the jury must look first to the mandatory death penalty requirement. 3 Because Beck compels that proper instructions must make clear that the jury does not have to complete its death deliberation before considering a life sentence, Mitts' due process rights were violated. Under Beck, a jury instruction violates due process if it requires a mandatory death penalty sentence that can only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment. 447 U.S. at 645. Accordingly, the holding of the Supreme Court of Ohio was contrary to clearly established federal law as determined by the Supreme Court of the United States in Beck v. Alabama; and we hereby remand the case to the district court with instructions to issue a writ of habeas corpus vacating Mitts' death sentence unless the State conducts a new penalty phase proceeding within 180 days of remand.

FOOTNOTES 3 This Ohio statute provides:
If the jury unanimously finds by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.

IV.

On the issue of ineffective assistance of counsel at the guilt phase of the trial, Mitts argues that his counsel completely failed to investigate the case and presented a single defense -- amnesia caused by alcohol blackout -- that counsel knew was unsupported by the facts and the law. He contends that counsel suppressed facts, ignored what Mitts and their expert told them, and presented a witness whom they knew would eviscerate their theory. As a result, Mitts argues that his counsel failed to subject the state's case to meaningful adversarial testing and created a presumptively unfair trial. 4 Mitts argues at length that his first claim--ineffective assistance of counsel in the guilt phase of trial--falls within the ambit of United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). A companion case to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Cronic provides three situations in which Strickland's prejudice requirement is presumed to be satisfied. Mitts seeks to invoke the Cronic situation whereby prejudice may be presumed if "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Cronic, 466 U.S. at 659. In 2002, the Supreme Court clarified that Cronic's presumption applies only where defense counsel completely fails to oppose the prosecution throughout the guilt or penalty phase as a whole. Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002). Taking their cue from Bell, lower courts have all but created a bright-line distinction between counsel who provide no representation at all (Cronic) and those who provide bad or even deplorable assistance (Strickland). See Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002) (collecting cases). In Moss, the court's majority found that trial counsel, "good or bad, was clearly not the equivalent of being physically or mentally absent . . . [t]his requires us to evaluate her performance under the Strickland standards, not under the Cronic rule of per se prejudice." Id. at 862. Accordingly, the district court's implicit finding that Cronic is inapplicable is correct, and Strickland governs both of Mitts' ineffective assistance of counsel claims.

We review a district court's decision regarding a habeas petitioner's claim of ineffective assistance of counsel de novo. Avery v. Prelesnik, 548 F.3d 434, 436 (6th Cir. 2008). The standard for whether counsel's ineffectiveness fell below the minimum requirements of the Sixth Amendment contains two components: (1) the deficient performance of counsel as compared to an objective standard of reasonable performance, and (2) that there is a reasonable probability that the lawyer's errors prejudiced the outcome of the proceedings. Strickland, 466 U.S. at 687-88. "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. Reviewing courts must try to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. To satisfy the prejudice prong of the Strickland test, the petitioner must show that a reasonable probability exists that, but for his counsel's unprofessional errors, the results of the proceeding would have been different. Id. at 694; Johnson v. Bell, 525 F.3d 466, 486-87 (6th Cir. 2008). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. To prevail on an ineffective assistance of counsel claim, Mitts must satisfy both the deficient performance and prejudice prongs of Strickland. See Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005).

We agree with the district court that counsel's performance during the guilt phase of trial was constitutionally deficient. The performance of Mitts' lead defense counsel, Thomas Shaughnessy, was deficient because he pursued a blackout defense despite knowing that Mitts could in fact recall most of the events of August 14 and 15, 1994, and because he did not have any evidence to support the theory that a person who suffered an alcoholic blackout would have been unable to form the specific intent to kill.
In an affidavit filed in support of his state court post-conviction petition, Mitts said his lawyer told him that he should say he had a blackout when the shootings occurred. (J.A. 634.) At his deposition for the federal habeas proceedings, Mitts described what he remembered about the shootings, indicating that although there were gaps in his memory he was able to recall both his internal struggles about his actions and most of the actions themselves. Mitts testified that he told Shaughnessy everything that he said in his deposition and that Shaughnessy told him to say that he did not remember. Mitts apparently followed the advice; in his unsworn statement in the mitigation phase of trial, he stated that he "never meant for any of this to happen" and said he only remembered bits and pieces of what happened. (J.A. 2360-62.)

Susan Evanson, a mitigation specialist who worked on Mitts' case, swore in an affidavit that Mitts "revealed to me that he was not in a blackout state at the time of his offenses, but was told by his attorney that under any circumstances [not] to tell anyone that he remembered anything regarding the charges." (J.A. 498-99.) Evanson had compiled a social history of Mitts by interviewing him and his family members and submitted a report to Dr. James Eisenberg, a psychologist appointed by the court to assist Mitts in the mitigation phase. Mitts first told Evanson that he did not remember the events of August 14-15, 1994, but he later told her that he did not have a blackout and that Shaughnessy told him not to tell anybody the truth. Evanson told Dr. Eisenberg what Mitts had told her. According to Evanson, Shaughnessy did not meet with her or Dr. Eisenberg until the day that Dr. Eisenberg testified at the mitigation phase of trial.

In his affidavit, Dr. Eisenberg stated that Mitts told him that his attorneys insisted he maintain during his interview and trials that he was in a blackout during his crimes. Dr. Eisenberg said that he did not believe that Mitts suffered a blackout and that Shaughnessy refused to accept his opinion about Mitts' mental state during the crimes. Dr. Eisenberg also stated that Shaughnessy was only interested in the blackout theory and did not want to address other psychological issues. In his deposition, Dr. Eisenberg testified that he refused to go along with Shaughnessy's blackout theory because Mitts never told him that he blacked out. Dr. Eisenberg said that Mitts was able to give a fairly detailed account of the events that led to his arrest, and he told Shaughnessy he did not think Mitts had a blackout. The psychiatrist also testified that Mitts told him it was his attorney's idea to say he had a blackout.
Accordingly, if Mitts, Evanson, and Dr. Eisenberg are to be believed, Shaughnessy pursued the blackout defense even though he knew that Mitts could remember many of the events of August 14-15, 1994, and instructed Mitts to lie about his memory. Shaughnessy is deceased, and nothing in the record from his co-counsel disputes Mitts' account or those of Evanson and Dr. Eisenberg.

The record also establishes that Shaughnessy knew, or should have known, that psychiatrist and defense expert Sonya McKee would not support the theory that someone who was intoxicated to the point of being unable to recall his actions later would have been unable to form specific intent. Shaughnessy tried to ask that question of Dr. McKee in the competency hearing on September 21, 1994, but the trial court sustained the prosecution's objection. Shaughnessy told Dr. McKee that he would definitely ask her the question again in front of the jury. Later in the hearing, Dr. McKee explained that although an intoxicated person may not remember his actions later, at the time he is conscious and engaged in activities. Dr. McKee also testified that Mitts' explanation that he remembered doing something without understanding why or what he was doing was not consistent with an alcohol blackout. During trial on November 2, 1994, Shaughnessy prefaced his question on this subject by saying, "[l]et me ask you the question, Doctor, that I haven't asked you before or we haven't got to before." (J.A. 2068.) He then asked whether a person who is unable to lay down memories would have the ability to form the specific intent to cause a particular thing to happen. Dr. McKee answered, "Yes." (J.A. 2069.) The record thus demonstrates that Shaughnessy should have recognized that Dr. McKee would not support his lack of specific intent theory, that Shaughnessy did not question Dr. McKee about his theory between the competency hearing and the trial, and that Shaughnessy called Dr. McKee as a witness with no reason to believe she would support his theory. Shaughnessy was forced to concede his defense in closing argument.

In sum, Shaughnessy's sole theory at trial was that Mitts lacked the requisite intent to commit murder as a result of voluntary intoxication, yet the defense's only expert witness directly contradicted that theory and Shaughnessy should have been aware that Mitts did remember much of the events. The defense's expert, Dr. McKee, testified that Mitts acted purposefully and intentionally--thereby not only destroying Mitts' sole defense but also proving a key element of the prosecution's case. Such performance alone would enable us to find counsel deficient for failing to fully investigate before presenting witness testimony. See Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000). Sadly, counsel's deficiency ran even deeper. Even a preliminary conversation with Dr. McKee would have revealed that she would not have supported a defense of voluntary alcohol intoxication for any defendant in any trial under any circumstances. It was her clinical opinion than anyone--not only Mitts--would pass out before alcohol intoxication rendered them unable to form intent. (J.A. 1200.) Moreover, the record shows that trial counsel had a hunch that Dr. McKee would contradict his intoxication defense and still placed her on the stand. (J.A. 1206 (defense counsel commented during side bar: "the lady [Dr. McKee], as I guessed that she would, was going to say that the defense is bull shit, which is about what she's saying.").) Shaughnessy's failure to do the minimal investigation required to determine his own expert's opinion about a matter central to his theory of the defense was objectively unreasonable and constituted deficient performance under Strickland and Combs.

Notwithstanding trial counsel's deficiencies, we agree with the district court that Mitts does not establish prejudice under Strickland. Shaughnessy did concede that Mitts shot the victims and abandoned the alcohol blackout defense after Dr. McKee's testimony, leaving Mitts without a viable defense theory at trial. Shaughnessy did not, however, bring out damaging information about Mitts, make him seem dangerous, or express contempt for him. He cross-examined the state's witnesses and brought out evidence in the guilt phase that laid the groundwork for the mitigation phase of trial.
Moreover, while Dr. McKee contradicted Mitts' voluntary intoxication defense, Mitts cannot show that another expert would have testified that Mitts was too intoxicated to form the specific intent to kill. Dr. Eisenberg testified during the mitigation phase that Mitts was highly intoxicated on the night of the offense but did not testify that Mitts lacked the intent to shoot the victims. (J.A. 1471-73 (testifying that the majority of the individuals whom he has evaluated as having alcohol impairment "were able to have knowledge and purpose at the time [of the offense].").) As Mitts' habeas counsel has noted, neither intoxication nor blackout was a defense available to Mitts. Neither the facts nor the law supported such a defense and the evidence of Mitts' guilt was overwhelming.

Even at this stage in the proceedings, Mitts offers no evidence of a trial strategy that may have produced a different result. As Mitts implies, the only alternative approach that his counsel could have reasonably attempted was a full concession defense. The Supreme Court recognized the merits of such a strategy in Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (defense attorney's concession of guilt in a capital trial--in light of overwhelming evidence against his client--did not constitute ineffective assistance of counsel). By admitting guilt from the beginning, the attorney will "impress the jury with his candor and his unwillingness to engage in 'a useless charade.'" Id. at 192 (quoting Cronic, 466 U.S. at 656-57 n.19).

It follows from Nixon that overwhelming evidence of guilt may signal to an attorney that a concession defense could prove an effective tactic, but we cannot extend the dicta of Nixon to find that counsel's failure to implement a concession defense constitutes ineffective assistance of counsel. Obviously, Mitts cannot show that a full concession defense could have changed the result of the proceedings at the guilt phase; the jury would, of course, have found him guilty. Mitts also cannot demonstrate that a concession defense at the guilt phase would have resulted in a lighter penalty at sentencing because such a tactic relies upon unprovable factors, such as the credibility of the lawyer and the morality and sympathy of the jury.
Lacking any viable alternative trial theory, Mitts cannot demonstrate "that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt about his guilt." Hicks v. Collins, 384 F.3d 204, 215 (6th Cir. 2004) (citing Strickland, 466 U.S. at 695). Hence, Mitts fails to satisfy the prejudice standard of Strickland and his first claim must fail.

V.

Mitts also claims that his trial counsel failed to investigate his case and failed to present evidence of viable mitigating factors. He charges that his counsel relied upon the unsupportable theory of alcohol-induced blackout that was discredited during the guilt phase of trial.

We also agree with the district court's assessment of counsel's performance during the penalty phase of trial. Counsel's chief deficiency during the guilt phase carried over into the mitigation phase when counsel continued to focus on alcohol intoxication. Despite having already received a guilty verdict that nullified the intoxication defense and the fact that Dr. Eisenberg did not believe that Mitts blacked out and that Dr. McKee had rejected the idea that a blackout meant that Mitts was so intoxicated that he could not form specific intent, counsel told the jury that alcohol intoxication was the "only thing that may mitigate." (J.A. 1387.) Shaughnessy also appeared to attack his own witnesses by comparing psychiatrists to those who believed in witches and by describing Mitts as a monster who should never be released from prison. It could be argued that Shaughnessy thought that the jurors would be skeptical of psychological explanations for Mitts' actions and that he wanted to assure the jury that, because of Mitts' age, he would die before becoming eligible for parole. These possible strategic reasons for parts of Shaughnessy's approach do not comprise a well-thought-out mitigation strategy. The district court correctly found that defense counsel did not conduct a reasonable investigation of alternative theories of mitigation and thus fell below the contemporaneous standards established by the Supreme Court and the American Bar Association. See Wiggins v. Smith, 539 U.S. 510, 522-23, 527, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Strickland, 466 U.S. at 691; ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989); 1 ABA Standards for Criminal Justice 4-4.1, commentary, pp. 5-55 (2d ed. 1982).

In order to assess whether prejudice resulted from counsel's failures at the penalty phase of trial, we "reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at 534. In order to establish prejudice, "the new evidence that habeas petitioner presents must differ in a substantial way--in strength and subject matter--from the evidence actually presented at sentencing." Brooks v. Bagley, 513 F.3d 618, 627 (2008) (internal citations omitted). On appeal, Mitts argues that he suffered prejudice at sentencing because trial counsel failed to present evidence of Mitts' avoidant personality disorder, full-scale IQ of 85, and "violent fantasy life." Dr. Eisenberg was unable, however, to link any event or events in Mitts' past to his actions on August 14 and 15, 1994, nor did he find or suggest that Mitts had an organic brain injury or a mental illness that might have contributed to his actions. His testimony that Mitts had no significant prior record and showed ability to adjust to prison life would have been cumulative to the evidence that was introduced in Mitts' mitigation hearing. The lay witnesses who testified on Mitts' behalf at trial portrayed him as a gentle man who loved his daughter and was seemingly incapable of the crimes he committed. Dr. Eisenberg's expanded explanation of the role of alcohol in Mitts' crimes would not likely have had much impact given the ineffectiveness of this evidence at trial. Mitts fails to show a reasonable probability that, but for counsel's failure to introduce this evidence at trial, he would have received a different verdict. We agree with the district court that the jury would not have given sufficient mitigation weight to Mitts' avoidant lifestyle, fascination with violent movies, or low normal intelligence to overcome the substantial aggravating factors in this case, to wit: killing a man while yelling a racial epithet and knowingly murdering a police officer in the performance of his duties.

The district court also correctly points out that the mitigation weight of such evidence is significantly lighter than the mitigation evidence in cases where prejudice has been found. See, e.g., Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (petitioner was raised by alcoholic parents, was regularly beaten by his father, and grew up in a filthy home, attending school "in rags"); Wiggins, 539 U.S. at 523-25 (petitioner's mother was a chronic alcoholic and, on at least one occasion, left petitioner and his siblings alone for days without food; petitioner was shuttled from foster home to foster home and displayed emotional difficulties); Williams v. Taylor, 529 U.S. 362, 395-96, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (petitioner's parents were imprisoned for criminal neglect of petitioner and his siblings and petitioner had nightmarish childhood, was severely and repeatedly beaten by his father and was borderline mentally retarded); Harries v. Bell, 417 F.3d 631, 639-40 (6th Cir. 2005) (petitioner had traumatic childhood, suffered significant physical abuse and had a mental illness); Frazier v. Huffman, 343 F.3d 780, 794 (6th Cir. 2003) (petitioner had brain injury that impaired brain functioning); Hamblin v. Mitchell, 354 F.3d 482, 490-91 (6th Cir. 2003) (petitioner grew up in environment of extreme poverty, neglect, violence, and instability and suffered from a mental disorder).

Once the jury was prevented by its instructions from considering mercy and life imprisonment until after an acquittal on the mandatory death penalty elements, the strength of the State's case and the brutal and senseless nature of the crime made it unlikely that the deficiencies in counsel's performance would have made any difference. The post-conviction evidence developed by habeas counsel does not convince us that trial counsel could have developed a basis for leniency so long as the structure of the jury's deliberations required that the jury first acquit Mitts of the mandatory death penalty.

VI.
Accordingly, as aforesaid, we affirm the District Court's conclusions as to ineffective assistance of counsel but agree with Justice Stevens' conclusions respecting the acquittal-first jury instructions and issue the writ of habeas corpus on that ground. The jury instructions prevented counsel from having a chance to convince the jury that life imprisonment was a viable option.

CONCURRING IN PART AND DISSENTING IN PART
SILER, Circuit Judge, concurring in part and dissenting in part. I concur in the conclusions in the majority opinion in Parts IV. and V., that is, I concur in the conclusions that Mitts has failed to satisfy the prejudice standard in both claims under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Nevertheless, I would not comment upon the deficient performance prong under Strickland, because I believe it to be unnecessary.

However, I differ with the majority in its conclusion under Part III., that a writ of habeas corpus should issue because the jury instructions were unconstitutional. First, I would not authorize the issuance of a writ of habeas corpus in this case based upon the concurring opinion by Justice Stevens in Smith v. Spisak, 554 U.S. , 130 S. Ct. 676, 689, 175 L. Ed. 2d 595 (2010). It was not raised by Mitts in his brief in this court nor in the district court, and it was only brought up by our court during oral argument. Certainly, a concurring opinion in a recent case does not constitute "clearly established Federal law" as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). The holding in Spisak was "that the state court's decision upholding these forms and instructions was not 'contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' in Mills [486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384]." Spisak, 130 S. Ct. at 684. It also held that this court erred when it found jury instructions unconstitutional because they required "the jury to unanimously reject the death sentence before considering other sentencing alternatives." Id. But the Court said that it had not "previously held jury instructions unconstitutional for this reason." Id. Like Mitts, Spisak never cited Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), in the Supreme Court or in any lower court.

Moreover, the Supreme Court has never extended Beck to cover penalty-phase jury instructions. In his post-argument brief, Mitts has failed to cite any Supreme Court case which applied Beck to penalty-phase instructions. Instead, he cites only Murtishaw v. Woodford, 255 F.3d 926, 972 (9th Cir. 2001).
The Supreme Court found that the jury instructions in Spisak, just like the ones in our case, meet the test under AEDPA, 28 U.S.C. § 2254 (b)(1), that is, that the state court's decision on the mitigation jury instructions was not contrary to, or an unreasonable application of, clearly established Federal law.

I also believe that Mitts is now precluded from raising the Beck issue at this late time. He has never challenged his jury instructions under Beck, either in state court or in his habeas petition. Such an issue was raised in Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010), where we would not rule on a last-minute Beck question when "neither Goff nor any previous court below referred to Beck . . . or identified any other precedent from th[e Supreme] Court setting forth this rule." Id. at 459. (quoting Spisak, 130 S. Ct. at 684). Thus, we declined in Goff to consider the case under the Beck principle, even though the dissent suggested that we should. The majority herein suggests that the Beck principle was raised by Mitts because the Ohio Supreme Court referred to State v. Thomas, 40 Ohio St. 3d 213, 533 N.E. 2d 286, 293 (Ohio 1988), which cited Beck. I do not think that Mitts preserved this issue, but even if he did, Beck does not apply in our situation. I would affirm the district court's denial of the writ of habeas corpus.

PROCEDURAL POSTURE: A jury convicted respondent prisoner on two counts of aggravated murder and two counts of attempted murder. He was sentenced to death. The prisoner filed a federal habeas petition. The U.S. Court of Appeals for the Sixth Circuit determined that the instructions given during the penalty phase of the trial were contrary to the Supreme Court's decision in Beck and vacated the death sentence. Petitioner warden filed a petition for certiorari.

OVERVIEW: The court of appeals concluded that the instructions unconstitutionally deprived the jury of a meaningful opportunity to consider a life sentence. The Supreme Court found that the instructions were not invalid under its decision in Beck. The concern addressed in Beck was the risk of an unwarranted conviction created when a jury was forced to choose between finding a defendant guilty of a capital offense and declaring him innocent of any wrongdoing. The question in the instant case, however, concerned the penalty phase, not the guilt phase, and the logic of Beck was not directly applicable to penalty phase proceedings. There was no reason to believe that the jurors could have been improperly influenced by a fear that a decision short of death would have resulted in the prisoner walking free because the jurors were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors--and therefore did not recommend the death penalty--they would choose from two life sentence options. The jury instructions were not contrary to clearly established federal law under the Antiterrorism and Effective Death Penalty Act of 1996.

OUTCOME: The petition for certiorari and the motion for leave to proceed in forma pauperis were granted. The judgment of the court of appeals was reversed. 9-0 Decision.

Per Curiam.

An Ohio jury convicted respondent Harry Mitts on two counts of aggravated murder and two counts of attempted murder. He was sentenced to death. At issue here is part of the jury instructions given during the penalty phase of Mitts's trial. The instructions, in pertinent part, were as follows:
“[Y]ou must determine beyond a reasonable doubt whether the aggravating circumstances, which [Mitts] was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case.
“When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.
“I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on [Mitts].
. . . . .
“On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.” App. to Pet. for Cert. 352a-353a.

We considered virtually the same Ohio jury instructions last Term in Smith v. Spisak, 558 U.S. 139, ___, 130 S. Ct. 676, 175 L. Ed. 2d 595, 603 (2010). See Mitts v. Bagley, 620 F.3d 650, 652 (CA6 2010) (noting that the “instructions in this case are the same Ohio instructions that were given in” Spisak). That case, like this one, involved review of a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA provides, as relevant here, that relief may not be granted unless the state court adjudication “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
In Spisak, we reversed a Court of Appeals decision that had found these instructions invalid under our decision in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). See 558 U.S., at ___-___, 130 S. Ct. 676, 175 L. Ed. 2d 595. Up until our decision in Spisak, Mitts had also pressed the claim that the instructions were invalid under Mills. After Spisak rejected that claim, the Court of Appeals in this case determined that the instructions were contrary to our decision in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), and accordingly vacated Mitts's death sentence. See 620 F.3d, at 658.

In Beck, we held that the death penalty may not be imposed “when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” 447 U.S., at 627, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (internal quotation marks omitted). We explained that such a scheme intolerably enhances the “risk of an unwarranted conviction” because it “interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id., at 638, 642, 100 S. Ct. 2382, 65 L. Ed. 2d 392. “[F]orcing the jury to choose between conviction on the capital offense and acquittal,” we observed, “may encourage the jury to convict for an impermissible reason--its belief that the defendant is guilty of some serious crime and should be punished,” even when there is “some doubt with respect to an element” of the capital offense. Id., at 632, 642, 637, 100 S. Ct. 2382, 65 L. Ed. 2d 392. Because the scheme in Beck created a danger that the jury would resolve any doubts in favor of conviction, we concluded that it violated due process. See id., at 638, 643, 100 S. Ct. 2382, 65 L. Ed. 2d 392.

According to the Court of Appeals below, the penalty phase instructions given at Mitts's trial--and the Supreme Court of Ohio decision upholding their use--were “contrary to” Beck, because they “interposed before the jury the same false choice” that our holding in Beck prohibits. 620 F.3d, at 658, 657 (internal quotation marks omitted). Referring to the instructions as “acquittal-first,” the Court of Appeals stated that they impermissibly required the jury to first decide whether to “acquit” Mitts of the death penalty before considering “mercy and some form of life imprisonment.” Id., at 656-657. Interpreting Beck to stand for the proposition that “a jury instruction violates due process if it requires a mandatory death penalty sentence that can only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment,” the Court of Appeals concluded that the instructions given during the penalty phase of Mitts's trial unconstitutionally “deprived the jury of a meaningful opportunity to consider” a life sentence. 620 F.3d, at 658, 657 (internal quotation marks omitted).

The instructions here are surely not invalid under our decision in Beck. The concern addressed in Beck was “the risk of an unwarranted conviction” created when the jury is forced to choose between finding the defendant guilty of a capital offense and declaring him innocent of any wrongdoing. 447 U.S., at 637, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (emphasis added); id., at 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392; see also Spaziano v. Florida, 468 U.S. 447, 455, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (explaining that the “goal of the Beck rule” is “to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence”); Schad v. Arizona, 501 U.S. 624, 646, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (“Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all”).

The question here, however, concerns the penalty phase, not the guilt phase, and we have already concluded that the logic of Beck is not directly applicable to penalty phase proceedings. In California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983), we rejected an argument that Beck prohibited an instruction to “a capital sentencing jury regarding the Governor's power to commute a sentence of life without possibility of parole.” 463 U.S., at 994, 1006-1009, 103 S. Ct. 3446, 77 L. Ed. 2d 1171. In so doing, we noted the “fundamental difference between the nature of the guilt/innocence determination at issue in Beck and the nature of the life/death choice at the penalty phase.” Id., at 1007, 103 S. Ct. 3446, 77 L. Ed. 2d 1171. In light of that critical distinction, we observed that “the concern of Beck regarding the risk of an unwarranted conviction is simply not directly translatable to the deliberative process in which the capital jury engages in determining the appropriate penalty.” Id., at 1009, 103 S. Ct. 3446, 77 L. Ed. 2d 1171; see also Schad, supra, at 647, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (stating that the “central concern of Beck simply is not implicated” when the “jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence”).

The jurors in Mitts's case could not have plausibly thought that if they declined to recommend the death penalty Mitts would “escape all penalties for his alleged participation in the crime.” Beck, supra, at 629, 100 S. Ct. 2382, 65 L. Ed. 2d 392. They had just convicted him on two counts of aggravated murder and two counts of attempted murder. They were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors--and therefore did not recommend the death penalty--they would choose from two life sentence options. There is accordingly no reason to believe that the jurors in this case, unlike the jurors in Beck, could have been improperly influenced by a fear that a decision short of death would have resulted in Mitts walking free.

We all but decided the question presented here in Spisak itself. After rejecting the contention that the Ohio instructions were contrary to Mills, we noted that “the Court of Appeals found the jury instructions unconstitutional for an additional reason, that the instructions 'require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives.' 558 U.S., at ___, 130 S. Ct. 676, 175 L. Ed. 2d 595 (quoting Spisak v. Mitchell, 465 F.3d 684, 709 (CA6 2006)). That is essentially the Beck claim presented here. See 620 F.3d, at 658 (holding that a “jury instruction violates due process if it requires a mandatory death penalty sentence that can only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment”). We rejected that claim in Spisak under AEDPA, noting that “[w]e have not . . . previously held jury instructions unconstitutional for this reason.” 558 U.S., at ___, 130 S. Ct. 676, 175 L. Ed. 2d 595, 603. Although neither the parties nor the courts below in Spisak had cited Beck, a separate concurrence in Spisak would have struck down the instructions in reliance on that decision. See 558 U.S., at ___, 130 S. Ct. 676, 175 L. Ed. 2d 595, 609 (Stevens, J., concurring in part and concurring in judgment). The Court nonetheless concluded that whatever the merits of that argument on direct review, “the jury instructions at Spisak's trial were not contrary to 'clearly established Federal law' ” under AEDPA. Id., at ___, 130 S. Ct. 676, 175 L. Ed. 2d 595, 604. The same conclusion applies here.

The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed.